# De Burgh v. De Burgh

> California Supreme Court · November 25, 1952 · 39 Cal. 2d 858

URL: https://www.frixlaw.com/law-library/cases/9537775

## Case

- **Full name:** DAISY M. De BURGH, Appellant, v. ALBERT RAYMOND De BURGH, Respondent
- **Court:** California Supreme Court
- **Decided:** November 25, 1952
- **Citations:** 39 Cal. 2d 858; 250 P.2d 598; 1952 Cal. LEXIS 314
- **Precedential status:** Published
- **Opinion:** Concurring in part by Shenk
- **Judges:** Traynor, Edmonds, Shenk
- **Cited by:** 136 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9537775

## How later opinions describe it (automated extraction)

- noting that the defense of recrimination is encompassed within the unclean hands doctrine

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537775. Public record. Not legal advice.