Pierce v. Pierce , 107 Wash. 125 ( 1919 )

Mount, J.

This action was brought for divorce based upon subdivision 8, § 1, ch. 106, Laws of 1917, p. 353 (amending §982, Eem. Code). The statute is as follows:

“Divorces may be granted by the superior court on application of the party injured, for the following causes: . . .”

Then, after enumerating seven subdivisions,

“(8) Where the parties are estranged and have lived separate and apart for eight years or more and the court shall be satisfied that the parties can no longer live together.”

The complaint alleged, among other things:

“That long prior to the first day of January, 1909, the plaintiff and defendant became estranged, that unhappy differences arose between them and they realized that they could no longer live together as husband and wife, and that they have ever since continuously been and are now estranged. That on the first of' January, 1909, the plaintiff and defendant, by reason of said estrangement and unhappy differences, mutually agreed to live separate and apart, each from the other, and entered into a written agreement of separation, bearing date January 1, 1909, which said agreement was acknowledged before a notary public by the said Henry J. Pierce on the 26th day of January, 1909, and by the said Violetta E. Pierce on the 17th day of April, 1909. That by the terms of said agreement the parties thereto not only agreed to live separate and apart, but the said plaintiff agreed that he would not reside in the city of Buffalo, county of Erie, or within twenty-five miles of any boundary of said city, and the said defendant agreed that she would not reside in the city of New York, or within twenty-five miles of any boundary of said city.

“That said parties by said agreement stipulated that each should be released and discharged from the performance of all marital duties as fully and completely in all respects as if the parties had never intermarried.

“That said separation has been continuous and without interruption for a period of more than eight years prior to the date of the commencement of this action, and that said estrangement has existed for a period of more than eight years prior to the commencement of this action, and that the plaintiff and the defendant can no longer live together as husband and wife.”

For answer, the defendant plead three separate defenses, to the effect that the separation was caused solely by the fault of the plaintiff; that the plaintiff, in January, 1908, commenced an action for divorce in the circuit court of the city of St. Louis, Missouri, in which he alleged that the defendant had abandoned him and had rendered to him such indignities as made his life intolerable; that the defendant appeared in that action and it was there determined that the plaintiff had abandoned the defendant, and the divorce was denied; that, subsequently, in the year 1909, the plaintiff brought an action in Spokane county, in this state, against the defendant, upon substantially the same grounds; that a finding was made in the case that the plaintiff had abandoned the defendant, and a divorce was denied; that, after the first action, hereinbefore named, was brought by the plaintiff, in Missouri, the defendant, being a resident of the state of New York, brought an action in that state to require the plaintiff to provide maintenance and support for herself and their children; and that that action for support and maintenance was compromised by the plaintiff entering into an agreement to turn over to the defendant certain property and to pay her $300 per month for the support of herself and their children. The defendant, for further and separate answer, alleged, in substance, that since the year 1911 she had been willing to resume marital relations with the plaintiff and live with him as his wife wherever he might elect to make their home. The defendant prayed that the action be dismissed and that she should have an allowance for suit money and attorney’s fees. On the trial of these issues, the court granted the plaintiff a divorce, but required him to pay to the defendant the sum of $400 per month for the support and maintenance of herself and their children, and $2,000 suit money and attorney’s fees. The defendant has appealed from that judgment.

The first contention made by the appellant is that subdivision 8 of the divorce statute is not retroactive. This subdivision was an amendment to the original divorce statute. It was passed in 1917. The amendment is quoted above. It will be noticed from a reading of the statute that it does not appear upon its face to relate back beyond the date of its passage. It simply says that

“ Divorces may be granted by the superior court on application of the party injured, for the following causes: . . .

“(8) Where the parties are estranged and have lived separate and apart for eight years or more and the court shall be satisfied that the parties can no longer live together.”

No pretension is made in this case that the parties have become estranged and have lived separate and apart eight years since the passage of that amendment. The sole contention is that the parties became estranged and have lived separate and apart for eight years, the greater portion of which time, necessarily, was prior to the enactment of this amendment. We are asked now to give this statute a retroactive effect so as to make it apply to estrangements which existed prior to the passage of the act. In Graves v. Dunlap, 87 Wash. 648, 152 Pac. 532, Ann. Cas. 1917B 944, L. R. A. 19160 338, we said:

“It is a rule of construction that a statute will not be given a retroactive effect unless by its terms it is shown clearly that that was the legislative intent.”

In 14 Cyc. 594, it is stated:

“A statute declaring the causes for which divorces may be granted is ordinarily to be given a prospective operation only and does not authorize a divorce for a specified cause which occurred before the statute was enacted.”

In Nelson on Divorce and Separation, vol. 1, at § 12, it is stated:

“The obvious intent is that the law will apply to misconduct occurring after the passage of the act. Under some constitutions an act making prior misconduct a cause for divorce will be held void so far as retrospective. . . . Whether void or not, the courts generally decline to give such statutes a retrospective interpretation. The rule is that statutes are to be given a prospective operation only, unless the terms show clearly that a retrospective operation was intended. A divorce law will not be given a retrospective operation even though the terms might admit of it.”

In Jarvis v. Jarvis, 3 Edwards Ch. (N. Y.) 462, where a new section had been added to* the statute of New York providing for limited divorces, extending the right thereto to cases in which it had not theretofore existed, it was said:

“In order to give her the benefit of the remedy which the bill seeks, the revised statutes, as applicable to her case, must be construed to have a retrospective effect. It is a rule, however, never to apply a statute retrospectively by mere construction. If its terms are such as clearly to indicate that the legislature intended it should operate upon or apply to past transactions of a civil nature, then the courts may permit it so to apply, provided it takes away no previously vested rights, nor impairs the obligations of contracts within the meaning of the federal constitution. But, if a statute is silent in .its terms or at all ambiguous in relation to its effect and application to past events, courts of justice are bound not to apply it to any other than to those which have arisen since the law took effect and are not at liberty to consider it other than as a prospective law operating prospectively upon the affairs and conduct of men.”

To the same effect are Barrington v. Barrington, 76 South. (Ala.) 81; Carson v. Carson, 40 Miss. 349. This is a rule of almost universal application. An examination of the statute in relation to divorce does not disclose any intention on the part of the legislature that the act should have a retroactive effect. It must, therefore, be held not retroactive.

Counsel for the respondent cite the record of the legislature referring to the passage of the act, to the effect that an amendment was proposed thereto as follows: “That section 1, line 17, insert ‘after the year 1917.’ ” This amendment was lost. The argument apparently is that, because this amendment was lost, it shows an intention on the part of the legislature that the act should take effect retroactively. If we may examine the legislative record in order to determine the legislative intent—a question we do not now decide—we are of the opinion that the result claimed does not follow. The reason the amendment was lost was plainly because the legislature concluded that the amendment was not necessary, for the reason that the act would not take effect retroactively even if that amendment were not made. The mere fact that this amendment was lost, does not disclose that the legislature intended this amendment to the divorce law to be retroactive. The statute not being retroactive, it follows that respondent was not entitled to a divorce.

There is another equally good reason why the divorce should not have been granted. The statute provides that divorces may be granted by the superior court on the application of the party injured, for the causes therein named. It was conclusively shown upon the trial that the parties to this action, in two other cases—one in the state of Missouri and the other in this state—had litigated the question of fault for the separation, and that in each of those cases it was determined that the respondent was at fault and not the appellant. In the case which came to this court (Pierce v. Pierce, 68 Wash. 415, 123 Pac. 598), the principal facts relating to the history of the case and parties are set out. It is unnecessary to again set them out here. In that case, referring to the question of fault for the separation, we said:

“The record convinces us that appellant has deserted his wife and children without just cause. . . . There is no showing of conduct on respondent’s part which we can accept as an excuse for appellant’s abandonment of her and the children. ... No sufficient showing has been made to justify us in awarding a decree in appellant’s favor against the protest of the respondent who has done no wrong. In her pleadings and evidence, she has alleged and testified that she will again receive appellant in her home; that she will live with him as his wife; that she will do all she can to renew their former relations and make him a happy home, and that she will forgive and forget the past. These offers, which she has repeatedly made and still makes, have been continuously and persistently rejected. The record is devoid of even a suggestion that he at any time has sought a reconciliation, or consented to live with his wife and family. ’ ’

That case adjudicated the question and effectively determined who was at fault for the separation. This court has, upon different occasions, said, in substance, that a divorce will not be granted to a husband who is wholly at fault. Johnsen v. Johnsen, 78 Wash. 423, 139 Pac. 189, 1200; Maloney v. Maloney, 83 Wash. 656, 145 Pac. 631. It follows, for this reason, that the trial court should have denied a divorce to the respondent.

Appellant further contends that the allowance for costs and attorney’s fees made by the lower court was entirely insufficient. The appellant testified that her expenses in coming to this state from Buffalo, New York, with her witnesses, were more than $800, and this did not include her living expenses while on the way and while here. The writer is satisfied that, under the circumstances of the case, the allowance made by the lower court should be doubled; but we are not in harmony upon this question, and since the matter is largely discretionary with the lower court, we decline for that reason to direct any further allowance.

For the reasons above given, that part of the judgment of the lower court granting a divorce is reversed.

Appellant will recover her costs.

Parker and Fullertoh, JJ., concur.