Smith v. Smith , 72 Ohio App. 203 ( 1943 )

I fully concur with my colleagues in their conclusion that the divorce in Mexico cannot have the effect of dissolving a marital status, created and recognized by one of the United States. I also agree that the defendant, therefore, never acquired a status which would permit her to enter into a legal marriage state with the plaintiff. As far as the parties to the present litigation are involved, they are in the same position as if no divorce decree had ever been entered by a Mexican court and no marriage ceremony had ever been performed thereafter between them.

The defendant has been guilty of bigamy and the plaintiff being fully cognizant of all the facts involved has been an accessory to her crime. He is equally guilty with her in any dereliction, whether legal or merely social.

He knew of the Mexican divorce before entering into their present status. He offered to pay the expenses of this Mexican divorce. He is charged with full knowledge of its illegality, just as she is so charged with knowledge of the law. He now seeks the aid of a court of justice, which, while not directly descended from courts of chancery, exercises in its administration of justice the same principles recognized by that court of equity. The law of divorce finds its early history in the ecclesiastical courts which certainly administered a justice not inferior in its quality of equity to those of the chancellor, who borrowed largely from the courts of the church in the development of what we today call equity jurisprudence.

I am not unaware that some of the courts of this Nation have seen fit to ignore principles recognized both by the chancellor and the courts of the church, that he who comes into equity must come into equity with clean hands, and that he who seeks equity must do equity. Such courts also ignore a principle not only recognized by courts of chancery and the church, but also courts of law, that the law will not permit its service of justice to be employed by those who are in pari delicto.

It seems strange indeed to find a court which refuses contribution among joint tort feasors opening its doors to one who has contributed to a status which the criminal code of the state recognizes as a violation of law.

It is said the law does not consider the parties involved, but the rights of society only. How the rights of society can be protected by granting the relief here prayed for is so obscure that giving the relief upon such a basis seems but a poor evasion of rules which have everything in their favor to recommend their observance.

It is said that these courts which base their affirmative action upon the theory that the interests of the public and society will be furthered will not, however, grant relief where such relief includes a change in the status of property rights. If the necessity to protect society is so great, why should the fact that the plaintiff profits by the divorce by having interests in property determined deter the courts from their desire to benefit the public? Is the interest of society any less merely because the plaintiff profits in some material fashion by the divorce? The answers to these questions seem to show the fallacy of the position of such courts.

The parties are not now married. Nothing that the court may say may make them less so. The only purpose secured by granting the plaintiff a decree is to permit him to remarry without any cloud upon that right. This is what he wants. The action of this court does not give him that right, it merely recognizes that right.

What principle of justice or consideration for society or benefit to the public may urge the exercise of such futile action?

The statute of Ohio does, it is true, recognize the continued existence of a previous marriage as a ground for divorce. The anomaly thus provided for demonstrates its own absurdity, since obviously if one or both of the parties are still married, the second marriage is a nullity and can create no legal status of marriage.

The petition here in question may be considered to warrant an annulment. This, of course, is an action peculiar to chancery and what has been said applies more strongly to this action than to that of divorce.

The Ohio courts have so far not followed the decisions noted in the majority opinion. No case seems to have arisen calling for such action. The decision of the trial court was the first in Ohio directly upon the subject. This state is not bound to follow the distorted conception of public policy contained in the action of our sister states. The trial court wisely refrained from such action.

It seems to me that the granting of a divorce to the plaintiff under the present circumstances not only fails to serve society or conserve the interest of the public, but, on the contrary, is a flagrant invitation to others to violate the law, cohabit in an unlawful state, and when tired of such situation, apply to a court of justice for a release from the indicia of the marriage status.

Such an attitude on the part of the court protects neither the welfare nor morals of society. It is my conception that courts of justice are not established and maintained for the purpose of granting relief to those who have violated the laws of the jurisdiction in which they function.

It is my conclusion that both considerations of justice and the interest of society require that neither party to the action should be granted any relief, whether property rights are involved or not, and that the petition and cross-petition should be dismissed, and the judgment of the trial court affirmed.