Cooke v. Cooke

Hoke, J.,

after stating the case:. Subject to the constitutional restriction that “it may not grant a divorce nor secure alimony in any individual case” (Const., Art. II, sec. 10), the question of divorce is a matter exclusively of legislative cognizance, and in the exercise of its powers over the subject the General Assembly of 1907 (chapter 89) added a new cause for absolute di *275 yoree, as follows: “If there shall have been a separation of husband and wife, and they shall have lived separate and apart for ten successive years, and they shall have resided in this State for that period, and no children shall have been born of the marriage.”

By chapter 165, Laws 1913, this section-was amended by “striking out all after the word ‘years’ in line six (line two of Pell’s Eevisal, see. 1651, subsec. 5) and inserting, ‘and the plaintiff in the suit for divorce shall have resided in this State for that period, and no children be born of the marriage and living.’ ”

This statute, express in terms and plain of meaning, is broad enough to include, and clearly does include, any kind of separation by which the marital association is severed and which may be made 1;he subject of further judicial investigation. There is nothing in the law to indicate that the right conferred is dependent on the blame which may attach to the one party or the other, nor that the time which may be covered by a judicial decree of divorce from bed and board shall be excluded from the statutory period, nor which permits the interpretation chiefly insisted upon by defendant, that the statute only applies when there has been a separation by mutual consent of the parties. But in the language of the statute, this cause for divorce shall prevail whenever—

“1. There has been a separation of husband and wife.

“2. When they have lived apart for ten successive years.'

“3. When the plaintiff shall have resided in this State for that period.

“4. No children be born of the marriage and living.”

And the Legislature having thus formally and clearly expressed its will, the Court is not at liberty to interpolate or superimpose conditions and limitations which the statute itself does not contain. 1

This being the correct construction of the law, we are of opinion that the proceedings and judgment in the Superior Court of Wake County offered in evidence by the present defendant, and in which she was awarded a divorce from bed and *276 board on tbe ground of wrongful abandonment on tbe part of plaintiff, ber busband, cannot be allowed to affect tbe course or results of tbé present trial. Not tbe decree, for it does not profess to sever tbe marital tie; tbat was not tbe question tben presented, and on tbat record tbe court bad no jurisdiction to award it. Not tbe verdict, on wbicb tbe decree was based, for tbe fact of abandonment being, as we bave seen, irrelevant to tbe present issue, tbe judicial ascertainment of sucb fact would lend it no significance. As heretofore indicated, it was chiefly urged for tbe defendant tbat tbe statute under wbicb present proceedings are instituted only applies when tbe separation has been by mutual consent of parties, citing certain decisions from tbe Wisconsin courts, Thompson v. Thompson, 53 Wis., 153; Cole v. Cole, 27 Wis., 531, and tbe definition of tbe word, “separation” appearing in Black’s Law Dictionary, etc. From a perusal of the Wisconsin decisions, it appears tbat tbe statute of tbat State contained express provision tbat tbe separation must be by mutual consent; and while tbe term “separation” has obtained tbe restricted meaning of a voluntary separation from being frequently so used in judicial proceedings, in its more usual sense it extends to and includes any kind of separation by wbicb tbe marital association is severed: “Tbe living asunder of man and 'wife.” 25 A. and E. Enc. Law, p. 432, citing Wharton and Jackson Law Dictionary. “If there shall bave been a separation' of busband and wife” is tbe language of tbe statute, and it clearly contemplates tbe primary and broader acceptation of tbe term.

Again, it was contended tbat a proceeding for divorce deals with and is designed to affect tbe status of tbe parties, and tbat tbe judgment in Wake has-established this status to be a legal separation from bed and board, and not otherwise; and further, tbat tbe time of sucb separation under and by virtue of tbat decree may not be properly counted as part of tbe statutory period. Tbe premise here is undoubtedly sound. Divorce proceedings concern chiefly tbe status of tbe parties, but this action in Wake County did not deal, and tbe court acquired bo jurisdiction to deal, with tbe marriage tie. Tbe decree only estab- *277 lisbed a legal separation of tbe parties for tbe time, and it is very generally beld tbat sucb a decree does not bar tbe right to an absolute divorce wben tbe statutory conditions for sucb a divorce are properly established. Evans v. Evans, 43 Minn., 31; Edgerly v. Edgerly, 112 Mass., 53; Green v. Green, L. R. Courts, Pro. Div., 121; Mason v. Mason, L. R., Pro. Div., 121. True, in some of these cases it is beld tbat sucb divorce can only be obtained on facts subsequent to tbe former decree, and tbat as to all former facts tbe parties are concluded. But this limitation should only prevail wben sucb former facts have legal bearing on tbe second inquiry, and does not affect tbe case presented here, where, as we have seen, neither tbe decree itself nor tbe fact on which it is predicated is relevant to tbe issue.

It is suggested, in this connection, tbat decrees for absolute divorce in a proceeding of this character will likely and at times necessarily bring about perplexing conflicts with tbe terms and conditions imposed by former decrees of divorce from bed and board, and more particularly in reference to allowances for alimony and certain proprietary rights still existent in cases of sucb decrees.

We do not now see tbat any sucb conflicts will necessarily arise; but, if they do, tbe relief sought and tbe changes required, in tbe law may not be made here. And so, as to tbe time covered by these decrees, tbe law, as we have seen, makes no such exception, and tbe courts are not at liberty to add to tbe statute what tbe Legislature has not seen fit to provide.'

And tbe same answer may be made to another position submitted for defendant: tbat tbe plaintiff wrongfully abandoned defendant, and should not be allowed to take advantage of conditions brought about by bis own misconduct. This general principle has been recognized in some of our former decisions, but, in tbe recent case of Ellett v. Ellett, 157 N. C., 161, it was beld to be unsound where, as in tbe present case, tbe Legislature has conferred tbe right of absolute divorce on tbe existence of certain specific facts or conditions, and it appears from tbe provisions of tbe law tbat tbe incipient blame of tbe one party or tbe other is not to affect the question.

*278 The public policy wbicb finds expression in tbis statute rests on the assumption that it is not well for persons in these circumstances to be absolutely deprived of all right to marry again; and where it has been sufficiently demonstrated by ten years separation that a reconciliation will not occur, and there are no living children to be affected, the lawmakers have deemed it.expedient and right to establish this as a cause for absolute divorce. They have not seen fit to make any exception in favor of the injured party nor to exclude the time covered by decree for a limited divorce; and, this being true, we must administer the law as we find it, and if it proves to be unwise in policy or undesirable in results, it must be changed by the legislative department, which is given full and exclusive cognizance of the subject.

Reversed.