noting that the defense of recrimination is encompassed within the unclean hands doctrine
How later courts described this case
- noting that the defense of recrimination is encompassed within the unclean hands doctrine
- where it was indicated that a divorce could be granted to both parties if the findings on remand so justify
- "Few rules of law have been more widely condemned by the legal profession”
Written by the judges who cited it.
The opinion
SHENK, J., Concurring and Dissenting.
I concur in the judgment of reversal on the ground that the findings are contradictory and irreconcilable. I disagree with the meaning given to the phrase “in bar of the plaintiff’s cause of divorce” which appears in section 122 of the Civil Code. It seems to me that those words were inserted in the statute for a purpose foreign to that now ascribed to them.
Section 111 of the Civil Code reads: “Divorces must be denied upon showing ... 4. Recrimination.” The limitation of that defense in an action for divorce is continued in section 122. That section defines “Recrimination” as “a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff’s cause of divorce.” Separate maintenance is an available remedy where a cause of divorce exists (Civ. Code, § 137), but because of a showing of recrimination a divorce may not be granted (§111).
There is thus no warrant for disapproving or overruling prior cases. When, as in this case, the court is faced with a showing of recrimination (any cause of divorce) on the part of each spouse in resisting a divorce sought by the other, there is no choice except to deny the divorce to both. On a record which undeniably supports a finding of recrimination on the part of each spouse, the trial court must be assumed to have exercised all of the discretion that it had if the denial of the divorce was based on that finding.