decided: April 16, 1952.
Before MARIS, MAGRUDER and STALEY, Circuit Judges.
MARIS, Circuit Judge.
The plaintiff, Joseph E. Burch, Jr., filed a complaint against his wife, the defendant, Ruth Miriam Burch, in the District Court of the Virgin Islands, Division of St. Thomas and St. John, seeking a divorce on the ground of incompatibility of temperament. The defendant filed an answer in which she sought the dismissal of the plaintiff's complaint and a counterclaim seeking a divorce and alimony upon the ground of her husband's cruel treatment of her. At the demand of the defendant, acquiesced in by the plaintiff, the case was tried in the District Court by a jury of six,*fn1 which rendered a verdict in favor of the plaintiff. Following the verdict the District Court entered a decree approving it and granting an absolute divorce to the plaintiff. The defendant thereupon took the appeal now before us.
At the outset we are confronted with the question whether an action for divorce may be tried to a jury under the law of the Virgin Islands. Section 1 of the Divorce Law of the Virgin Islands, the full text of which is set out in a footnote,*fn2 provides that an action for the dissolution of the marriage contract is "an action of equitable nature". Chapter 38 of Title III of the Code of Laws of the Municipality of St. Thomas and St. John provides the procedure for the trial of issues in actions of an equitable nature. Section 1 of that chapter provides that in such actions "Both issues of law and fact shall be tried by the court, unless referred [to a referee], provided however, the court may, in its discretion, order a jury to inquire into a fact and render a verdict as to such fact."*fn3 Reference to a referee is provided for by Chapter 19 of Title III, while Section 6, Chapter 1, Title I, authorizes the judge of the District Court to empower the District Court Commissioner to hear the testimony in designated categories of civil cases and report his findings to the judge.
It will thus be seen that the procedural law in the Virgin Islands applicable to actions for divorce requires that issues of fact shall be tried by the court, unless referred to a referee or to the District Court Commissioner, and that a jury may be employed only to make findings as to particular facts. Here the jury was not so employed. On the contrary the case was tried as an ordinary civil jury action and all the issues of fact were submitted to the jury to be determined by a single verdict in favor of the plaintiff or the defendant. This general reference of all the issues in the case to a jury was unwarranted and the verdict rendered by the jury was, therefore, without legal effect. The decree entered thereon must accordingly be set aside unless we are able to conclude, after the review of the record de novo which it is our duty to undertake on this appeal,*fn4 that the evidence fairly establishes the existence of a state of facts which under the applicable rules of law will support the decree which the District Court entered on the verdict. We turn, therefore, to consider the issues of fact and law which the case presents.
At the outset we are confronted with a question of jurisdiction. Under our system of law, judicial power to grant a divorce is founded on domicile. Williams v. North Carolina, 1945, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 1577. Accordingly the domicile of at least one of the spouses must be within a state or territory in order to give the courts of that state or territory power to dissolve the marriage. Section 9 of the Divorce Law of the Virgin Islands provides that the plaintiff in an action for the dissolution of marriage "must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction". In the light of the rule of law to which we have referred the words "inhabitant" and "residence" as used in the statute must be taken to mean "domiciliary" and "domicile" respectively. It follows that in order to support a decree for divorce in the Virgin Islands there must be a finding by the District Court that the plaintiff was domiciled in the Virgin Islands at the commencement of the action and for six weeks prior thereto. Domicile is a familiar concept in the law*fn5 upon which we think it unnecessary to elaborate other than to point out that it involves the idea of a residence sufficiently permanent that its termination is not presently contemplated. Jurisdiction to decree a divorce is not conferred upon the court by a mere temporary residence in the district which is accompanied by a present intention on the part of the plaintiff to leave the Islands as soon as a divorce is granted.
The uncontradicted evidence in this case supports a finding that the plaintiff satisfied the statutory requirement of domicile in the Virgin Islands. He is an electrical engineer. He had been employed by the Mine Grande Oil Company in Venezuela. He left Venezuela in May, 1950 and later gave up his employment with the oil company. About the first of July he came to St. Thomas where he secured employment with the Power Authority under contract to maintain their switchboard and to assist in technical problems which might arise in the telephone system. He was also employed by the Caribbean Enterprise Corporation to help with the work on the cable system for the new telephone system. This suit was begun on August 31, 1950. He testified at the trial on April 16, 1951 that he had lived in St. Thomas nine or ten months and was engaged in the employment above mentioned. We conclude that the District Court had jurisdiction to entertain the suit.
The plaintiff's suit is based upon the ground of incompatibility of temperament. This was one of the grounds of divorce recognized in the Code of Laws of the Municipality of St. Thomas and St. John as originally enacted by the Colonial Council of the Municipality in 1921*fn6 and was carried over into the Divorce Law enacted by the Legislative Assembly in 1944. The Virgin Islands was the first American jurisdiction to adopt incompatibility as a ground for divorce, being followed in 1933 by New Mexico*fn7 and in 1935 by Alaska.*fn8
Under the Danish law which was in force in the Islands at the time of the adoption of the codes in 1920 and 1921 divorce upon grounds analogous to incompatibility of temperament had been recognized.*fn9 Accordingly the inclusion of this ground in the codes did not involve a radical innovation in these Islands. On the contrary there is strong ground for thinking that it was inspired by the pre-existing Danish law. The codes adopted by the Colonial Councils of the two Virgin Islands municipalities in 1920 and 1921 were taken largely from the codes of the Territory of Alaska*fn10 and Title III, chapter 44, Section 7, of each code (which sections have now been incorporated in Section 7 of the 1944 Act) contained the whole of Section 1299 of the Code of Civil Procedure of Alaska*fn11 verbatim. The latter section set forth only six grounds for divorce, however, while the section as enacted in the Virgin Islands codes contained eight, the two additional grounds being insanity occurring after marriage and incompatibility of temperament. Since these were grounds then unknown to the Alaska law but recognized under the Danish law then in force in the Islands it would seem most likely that they were added to preserve that existing law. This background throws light upon the intended meaning of the phrase as a statutory ground for divorce in the Virgin Islands. The decisions of the Supreme Court of New Mexico construing a similar provision of the divorce law of that state are also helpful in this connection.*fn12 We conclude that while incompatibility of temperament in the Virgin Islands Divorce Law does not refer to those petty quarrels and minor bickerings which are but the evidence of that frailty which all humanity is heir to, it unquestionably does refer to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other. To use the ancient Danish phrase, the disharmony of the spouses in their common life must be so deep and intense as to be irremediable. It is the legal recognition of the proposition long established in the earlier Danish law of the Islands that if the parties are so mismated that their marriage has in fact ended as the result of their hopeless disagreement and discord the courts should be empowered to terminate it as a matter of law.
The evidence in this case, the details of which it would serve no useful purpose to recount, supports a finding of the existence of such a state of incompatibility of temperament between the parties. The statute, however, provides that a divorce may only be granted at the instance of the "injured party". We must, therefore, determine whether the plaintiff has met the burden of showing that he was an injured party in the sense contemplated by the statute.
First we must consider whether the statutory phrase "injured party"*fn13 means not only one who is injured by the grounds alleged for divorce but also one who is innocent of any conduct which would afford his or her spouse grounds for divorce. We think that the divorce law of the Virgin Islands does not impose such a burden upon a plaintiff in divorce. The statute does not require, as do some divorce laws,*fn14 that suit must be brought by the innocent and injured party. Moreover it is perfectly clear that in the case of at least two of the grounds for divorce recognized by the statute, impotency existing at the time of the marriage and insanity occurring after marriage, there can be no question of either innocence or guilt. In those cases the phrase "injured party" can only mean the party who has lost the privilege of enjoying a normal marital relationship by virtue of the physical disability of the other. We think that the statutory phrase must be given the same meaning in the case of each of the other grounds for divorce. We, therefore, conclude that the plaintiff was not required to prove himself innocent of any conduct which might have been grounds for divorce at the instance of the defendant but only that he had been injured by the existence of the ground which he asserts, namely, incompatibility of temperament.
The question remains whether the plaintiff can assert that he is injured, within the meaning of the statute, by incompatibility of temperament in which he himself participates. For incompatibility of temperament necessarily involves both parties. While one spouse may have a more normal temperament than the other and the overt acts evidencing incompatibility may come largely from the other spouse, it is inconceivable that a husband's temperament can be compatible with that of his wife if hers is incompatible with his. If there is a clash of personalities both must clash. It necessarily follows, we think, that in cases of incompatibility of temperament both spouses are injured by their common incompatibility. Each has lost the right and opportunity to enjoy a normal marital association with the other. It is accordingly clear that the plaintiff in this case has shown himself to be an injured party entitled to bring suit for divorce on the ground of incompatibility of temperament even though his temperament is just as incompatible with that of the defendant as hers is with his.
We next must consider whether the defense of recrimination is available in this suit. For the defendant seeks to defeat the plaintiff's suit by alleging that he was guilty of cruel treatment of her which, she asserts, bars him from obtaining a divorce from her. Before considering the validity of this defense, however, we pause to remark that incompatibility of temperament on the part of the plaintiff could not itself operate as a defense by way of recrimination against his suit for divorce on the same ground.*fn15 Indeed, the defendant makes no such contention in this case. Her defense asserted by way of recrimination is, as we have said, that the plaintiff was guilty of cruel treatment of her. We must determine whether this defense is available to her since there is evidence of such cruelty on the plaintiff's part and indeed in his testimony he conceded certain instances of it. We, therefore, proceed to consider the extent to which recrimination is available as a defense in a suit for divorce in the Virgin Islands.
In determining this question we look first to the background of Danish law. It appears that the only true defense of recrimination which that law recognized was that a plaintiff seeking a divorce on the ground of adultery could not have a decree if it were shown that he also had committed adultery.*fn16 When we turn to the codes which the Colonial Councils of the two municipalities of the Virgin Islands adopted under American sovereignty in 1920 and 1921 we find in Title III, Chapter 44, Section 10, the defense of recrimination authorized in this same instance and in this instance only. Each provides that in an action for divorce on the ground of adultery the defendant may admit the adultery and show in bar of the action that the plaintiff has been guilty of adultery also. This section of the codes was carried without change into Section 10 of the Divorce Law of 1944 as enacted by the Legislative Assembly for both municipalities. As we have already pointed out, the original codes of 1920 and 1921 were largely taken from the codes of Alaska. The provisions of Section 10 here under discussion were taken without material change from Section 1302 of the Code of Civil Procedure of Alaska.*fn17 They likewise reflected the existing Danish law on the point, as we have indicated. In this background the legislative intent would appear to be clearly inferable not to permit the defense of recrimination to bar the granting of a divorce in other cases.
It may be conceded that a majority of the decisions in the various states have held that the defense of recrimination will bar a plaintiff from obtaining a divorce if knowingly and without connivance or justification he has committed an offense which itself would amount to a ground for divorce. In that case, say these courts, no divorce will be granted to either party. The doctrine of recrimination has been rested upon the equitable maxim that he who comes into equity must do so with clean hands, upon the doctrine that divorce is a remedy for an injured spouse, not for a guilty one,*fn18 and upon the contract theory that he who seeks redress for the violation of a contract resting on mutual and dependent covenants must himself have performed the obligations on his part.*fn19 But the doctrine of recrimination in divorce has been much criticized in recent years.*fn20 For it ignores the fact that marriage is not a mere private contract but rather a status of such basic importance in the social structure that the state has a vital interest in its proper continuance and appropriate termination.*fn21 From a social point of view it is hard to defend the rule that recrimination is an absolute bar to the granting of a divorce for it requires that parties who are guilty of conduct which makes their marriage impossible of success shall continue their impossible marital relationship as a sort of punishment for their mutual guilt. For this reason the application of the doctrine has been relaxed as an absolute bar to divorce in a number of jurisdictions.*fn22 Among these is New Mexico in which it has been specifically held that the defense of recrimination is not an absolute bar in a suit for divorce on the ground of incompatibility.*fn23
It appears that in the present case the District Court sought to apply the doctrine of comparative rectitude rather than the strict rule of recrimination. The judge in charging the jury said, inter alia: "In other words, you will have to determine whether you believe - if you find that there is wrong on both sides - that the wrong which the husband did the wife overbalances the wrong which the wife did the husband; or the wrong which the wife did the husband overbalances the wrong which the husband did the wife.You will have to weigh these issues and decide whether you find the issues in favor of the one or the other." It is true that this doctrine of comparative rectitude has been adopted in some jurisdictions in recent years as a modification of the more rigorous doctrine of recrimination.*fn24 Obviously, it could not apply to a case of incompatibility of temperament and in any event the Legislative Assembly of the Virgin Islands did not prescribe it in the Divorce Law of 1944.
In accord with what we believe to be the legislative intent we hold that the defense of recrimination is not a bar to the granting of a divorce under the laws of the Virgin Islands except in the circumstances specified in Section 10 of the Divorce Law and that the doctrine of comparative rectitude is not applicable in the Islands. We think, however, that evidence of misconduct on the part of the plaintiff may be considered by the court along with all the other evidence in determining whether, in the discretion of the court,*fn25 the best interests of the parties and of the public will be served by the granting of a divorce.It has been so held by the Supreme Court of New Mexico under the statute of that state*fn26 and we regard the rule as sound and in the public interest.
As we have said, the evidence in this case supports a finding of incompatibility of temperament between the parties. Since the cruelty of the plaintiff to the defendant does not under the Virgin Islands law bar the granting of a divorce to the plaintiff on the ground of incompatibility and, in our judgment, was not such as to call for the discretionary denial of the divorce he seeks, it appears that the plaintiff was entitled to a divorce. It follows that the decree which the District Court entered in his favor is supported by the facts of the case and the legal rules applicable thereto. It remains to be determined whether the defendant is also entitled to a divorce under her counterclaim upon the ground of the plaintiff's cruelty toward her. For when recrimination is not a bar the court may grant a divorce on both complaint and counterclaim if the evidence justifies it.*fn27
Subdivision (5) of Section 7 of the Divorce Law fixes as a cause for divorce: "Cruel and inhuman treatment calculated to impair health or endanger life". It has been held that there is no exact inclusive and exclusive definition of "cruel and inhuman treatment" which can be used as a standard yardstick,*fn28 but that the court must determine whether the facts in the particular case constitute such cruelty or not.*fn29 The cruel and inhuman treatment which entitles a party to a divorce must be such as to endanger life or health.*fn30 A single act of physical violence*fn31 has been held to be cruel and inhuman treatment and where it was shown that the husband had so little control over his passions that on any provocation he was likely to repeat the one act of personal violence the court determined that the wife had suffered cruel and inhuman treatment.*fn32 The statute further stipulates that the cruelty must be "calculated" to impair health or endanger life. Does this mean that it must be intended to do so? We think not. As we have seen, this ground for divorce, as contained in Section 7, was taken directly from the Alaska Code of Civil Procedure.*fn33 We are in accord with the District Court of the Territory of Alaska in holding that the word "calculated" as used in these statutes means "likely to" rather than "intended to" impair health or endanger life.*fn34
We turn then to the evidence of cruelty. The defendant alleges that by reason of the plaintiff's cruelty she deems it unsafe to longer live with him.At the trial the plaintiff admitted several instances when he lost his temper and used physical violence on the defendant. At one time he choked her. After this happened he moved away from their home because he "was afraid it might happen again and [he] would not come out of it as soon." There was other evidence of cruelty which we need not recount. Suffice it to say we find that the plaintiff was guilty of such cruel treatment of the defendant as to entitle her to a divorce on that ground. It follows that the decree of the district court must be modified by striking therefrom the approval of the verdict of the jury and by providing that both plaintiff and defendant shall be granted an absolute divorce forever dissolving the marriage entered into between them on August 23, 1947.
One further matter remains for consideration. The defendant in her counterclaim not only sought a divorce but also alimony. In view of the jury's verdict against the defendant this was refused by the district court. But in the light of our conclusion that the defendant is herself entitled to a divorce it must be reconsidered. The defendant makes her claim under Section 12 of the Divorce Law which provides that:
"Whenever a marriage shall be * * * dissolved the Court shall have power to further decree * * * (3) For the recovery from the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other".
It will be observed that under this statute alimony may only be recovered from the "party in fault"*fn35 in a divorce suit in which a divorce decree is granted. Is the plaintiff a "party in fault" in the present suit within the meaning of Section 12? It can certainly be said that he is the party at fault in the defendant's counterclaim since we have held that the defendant is entitled to a divorce under the counterclaim by reason of the plaintiff's cruelty. But we think that the phrase "party in fault" as used in Section 12 is intended to refer compendiously not merely to parties whose overt acts constitute grounds for divorce but also to any party whose disability or defect of body, mind or temperament may have deprived the other party of the opportunity of enjoying a normal marital relationship. In this sense the plaintiff is a party at fault in his own suit for divorce on the ground of incompatibility. For, as we have already pointed out, incompatibility of temperament necessarily involves both parties so that in a very real sense the incompatible temperament of each party has deprived the other of a normal marital relationship. This means, of course, that in this same sense the defendant was also at fault in the plaintiff's suit brought on the ground of incompatibility. Under the circumstances we conclude that both parties were at fault within the meaning of Section 12.
This, however, does not necessarily preclude the defendant from receiving an award of alimony from the plaintiff. On the contrary Section 12 of the Divorce Law vests in the District Court full power to require a party at fault to contribute to the maintenance of the other party, if it is just, equitable and in the public interest to do so, even though the other party be also somewhat at fault. Whether an award of alimony shall be made, as well as the amount to be awarded, is within the discretion of the court, having regard to the conduct of both parties, the amount of property of each and all the other circumstances of the case.*fn36 In the present case the District Court has not yet given any consideration to this problem. The rejection of the defendant's claim for alimony was not the result of an exercise of judicial discretion by the court but purely the result of the denial of her counterclaim for divorce which, as we have seen, was erroneous. There is, therefore, no action for us to review on this branch of the case and it must accordingly be remanded for consideration of the defendant's counterclaim for alimony.
The decree of the District Court will be modified as indicated in this opinion and as so modified will be affirmed. The cause will be remanded with directions to the District Court to consider the defendant's counterclaim for alimony if within thirty days after the coming down of the mandate of this court she moves for its consideration.