In Walton v. Walton, 86 Colo. 1, 14, 278 Pac. 780, 784, this court said: "* * * the question of public policy is for the legislature.Summary of this case from Smith v. Greenburg
Decided March 4, 1929. Rehearing denied June 10, 1929.
Action for divorce. Decree entered for defendant on her cross-complaint and over her objection, with modified order for payment of alimony.
Affirmed in Part. Reversed in Part. On Application for Supersedeas.
1. DIVORCE AND ALIMONY — Alimony — Court Powers. The trial court in a divorce action has jurisdiction to hear and determine the question of future payments of alimony, and also to make any modification with respect thereto warranted by the evidence, and its determination thereof is binding upon the appellate court unless there has been an abuse of discretion.
2. Findings. In a divorce action, where there is a finding for defendant upon her cross-complaint, the court must necessarily have found that she had not been guilty of a violation of the marriage contract.
3. Equity Jurisdiction. All courts, in entertaining jurisdiction of divorce matters, do so under their equity powers.
4. EQUITY — Maxims — Clean Hands. He who comes into a court of equity must come with clean hands.
5. DIVORCE AND ALIMONY — Innocent Party — Decree. In an action for divorce, although the wife may be entitled to a decree, it is optional with her whether she will exercise the right. She cannot be compelled to do so, and this is true even though her reasons for refusing are entirely mercenary.
6. APPEAL AND ERROR — No Objection Below. Where there are no objections made nor exceptions saved to rulings of the court below, such rulings will not be considered on review.
7. PUBLIC POLICY — Legislative Powers. Ultimately the question of public policy is for the legislature, and when that policy is unequivocally declared, the declaration is binding upon the courts.
8. DIVORCE — Public Policy. Policies of Colorado concerning divorce as established by statute and decisions, enumerated.
9. Statutes — Construction. The Supreme Court declines to place a construction upon c. 90, S. L. '25, concerning divorces, which will in effect establish as the policy of the state that the marriage relation does not lie at the foundation of our civilization, is not the promoter of public morals and conservator of social order.
10. Statutes — Construction. Chapter 90, S. L. '25, concerning divorces, is so mandatory in its provisions that there can be no discretion whatever exercised by the courts.
11. Legislative and Judicial Powers. When the legislature has enacted a statute prescribing the grounds of divorce and the steps necessary to give a court jurisdiction, it has discharged its duty and exhausted its powers relative thereto. When the court has acquired jurisdiction it must be left to determine the case and issue its decree in accordance with the well-established rules prevailing within its jurisdiction.
12. Court Decisions — Case Overruled. In so far as the opinion in Parsons v. Parsons, 70 Colo. 154, conflicts with the opinion in the instant case, it is overruled.
13. Decree. The granting of a decree of divorce is not a ministerial, but a judicial, act.
14. PRACTICE AND PROCEDURE — Rules. The Supreme Court has the right and power to make rules with reference to procedure.
15. DIVORCE — Constitutional Law. In so far as chapter 90, S. L. '25, concerning divorces, attempts to empower and direct the court to issue its decree upon the application of the guilty party, it is against public policy and unconstitutional.
16. Withholding Decree. The Supreme Court does not hold that in a divorce case, where a decree is withheld for an unreasonable time, and the defeated party has rights which he wishes determined on review, that he cannot have an order of court requiring the successful party either to accept the decree or dismiss the action.
Error to the District Court of the City and County of Denver, Hon. George F. Dunklee, Judge.
Mr. HENRY A. LINDSLEY, Mr. HENRY S. LINDSLEY, for plaintiff in error.
Messrs. WRIGHT IRELAND, for defendant in error.
Mr. HORACE N. HAWKINS, Mr. W. L. BOATRIGHT, Messrs. BARDWELL BARDWELL, Messrs. ROBINSON ROBINSON, Messrs. VAN CISE ROBINSON, Messrs. IRELAND BLACKMAN, Messrs. PONSFORD, PENDER LARWILL, Messrs. RHOADS SEEMAN, Messrs. LEWIS GRANT, amici curiae.
THIS is an action for divorce in which the defendant in error, James B. Walton, hereinafter referred to as plaintiff, filed a complaint charging his wife, Lillian M. Walton, the plaintiff in error, hereinafter referred to as defendant, with cruelty and desertion. The defendant filed her answer denying the charges of cruelty and desertion, and also filed a cross-complaint charging the plaintiff with adultery, and prayed a decree of separate maintenance. The plaintiff filed an answer to the cross-complaint denying the allegations thereof.
The case was called for trial, a jury was sworn therein, and upon leave of court so to do, the plaintiff withdrew his complaint. The defendant was permitted to amend her cross-complaint by prayer for divorce. The jury was discharged, with the consent of the parties, and the case proceeded to trial before the court as a non-contested matter.
The defendant was awarded findings of fact and conclusions of law, and certain orders were made, upon stipulation of the parties, with respect to a settlement of their financial affairs, and incorporated in said findings.
The defendant subsequently filed a motion to set aside the findings of fact and conclusions of law, to which the plaintiff filed an answer, in which he joined in a request of the defendant that "the cause be set down for hearing and trial * * * including the terms of alimony," and also prayed that a decree of divorce be granted the defendant, the six months' period subsequent to the signing and filing of the findings of fact and conclusions of law, having fully expired.
The court, upon hearing the defendant's motion and pleadings thereto, made certain modifications with respect to the financial arrangements of the parties, and also granted, upon application of the plaintiff, and over the express objection of the defendant, the decree of divorce.
The defendant was dissatisfied with the trial court's action: (1) In modifying its former orders respecting the payments to be made for the support of herself and the two minor children; and (2) in granting the decree of divorce upon the application of the plaintiff. To review this action, the defendant brings the cause to this court.
1. The trial court, in its findings of fact and conclusions of law, adopted, and incorporated therein, the financial arrangement of the parties to this action. Subsequently, at a hearing, the court found that the plaintiff, by reason of changed conditions, without his fault, was unable to continue the payments required of him by court order, and accordingly reduced the same, as to sums for alimony and support money payable in the future, and in all other respects confirmed the financial arrangements made by the parties themselves.
We held in Stevens v. Stevens, 31 Colo. 188, 189, 72 Pac. 1061, that "by virtue of the general equity powers of a court granting a divorce * * * such court has the authority to modify the decree relative to alimony payable in the future."
We also held in Jewel v. Jewel, 71 Colo. 470, 472, 207 Pac. 991, that "a court of equity by virtue of its general powers has authority to modify a decree relative to alimony, when changed circumstances make it just and necessary."
And we held in Diegel v. Diegel, 73 Colo. 330, 332, 215 Pac. 143, that "the court rendering a decree of divorce retains jurisdiction to modify provisions thereof relating to alimony, division of property or a money judgment. Its jurisdiction is continuous."
The law, as thus announced, has been consistently followed since the Stevens case, supra, and while we are mindful that these cases deal directly with decrees, the reason for making it applicable to findings of fact and conclusions of law impress us with equal, if not greater, force. Therefore, the trial court had jurisdiction to hear and determine the question of future payments, and also to make any modification with respect thereto warranted by the evidence. Its determination thereof is binding upon us, unless a reading of the record discloses that the trial court abused its discretion, and this we do not find.
2. The court below, in granting a decree of divorce to the defendant, upon application of the plaintiff, proceeded under the provisions of an amendatory act of the legislature, chapter 90, Session Laws of Colorado, 1925, which reads as follows: "If the findings of fact and conclusions of law have not been set aside within six months from the day on which they were filed, and no motion to set them aside remains unheard and undecided, the court shall grant a divorce to the party entitled thereto upon the application or motion of either party to said suit or action, according to the said findings of fact and conclusions of law."
It will be observed that the amendment is mandatory in its terms, does not permit the court to exercise any discretion whatever, and requires the court, under the conditions mentioned therein, to "grant a divorce to the party entitled thereto upon the application or motion of either party to said suit or action."
It should be remembered, that in the instant case, the husband, who was the plaintiff in the divorce action, had been found guilty of a violation of his marital obligations to such an extent as to justify the court below in finding that the defendant, upon her cross-complaint, was entitled to be forever relieved from the marriage contract. Before the court could enter its findings in favor of the defendant, it must necessarily have found that the defendant had not been guilty of a violation of the marriage contract. It must also be remembered that the defendant strenuously objected to the court's action in granting the decree.
The question naturally arises; is the innocent party, under such circumstances, compelled to accept a decree of divorce because the guilty party desires that one shall be entered? The answer to this depends upon whether or not: (a) The legislature may require a court of equity to grant and issue its decree upon application of the guilty party; (b) the act mentioned (chapter 90, Session Laws, 1925) is in violation of article III of the Constitution of the state of Colorado; and (c) the amendatory act is a matter of procedure, and if so, does it fall within the provisions of section 444, Code of Civil Procedure, and section 5630, C. L. of Colorado, 1921.
(a) Section 5547, Compiled Laws of Colorado, 1921, provides: "Marriage is considered in law a civil contract, to which the consent of the parties is essential."
In the case of Stebbins v. Anthony, 5 Colo. 348, 349, we find the doctrine announced that: "While there are some adjudications to the effect that an action of divorce is a purely statutory proceeding, we think the weight of authority opposed to this view; and that the jurisdiction of the equity tribunals has generally been asserted and maintained in this country in the absence of statutes as well as under them."
An examination of the authorities in this jurisdiction discloses the fact that the doctrine laid down in the Stebbins case, supra, has since been consistently maintained, and therefore, all courts, in entertaining jurisdiction of divorce matters, do so while under their equity powers.
In the case of Gilpin v. Gilpin, 12 Colo. 504, 519, 21 Pac. 612, we find the following language: "Society, the public, the commonwealth, have an interest in the preservation of the marriage relation. In an important sense it may well be said there are three parties to every divorce proceeding — the husband, the wife, and the state; and in some instances a fourth — the children."
Also at page 511, we find: "The laws of the state specify many causes for which divorces are allowed. In the opinion of many good people the family household may be thereby too easily broken up and destroyed. The institution of marriage lies at the foundation of our civilization. It is the safeguard of education and true religion, the promoter of public and private morals, and the conservator of social order. Public policy favors the continuance of the marriage relation, and the courts should not lend their influence to dissolve the same except in obedience to strict law. It does not follow because a married person has a legal ground of divorce that he or she is bound to assert the same in the courts, either as plaintiff, or as defendant by way of cross-complaint."
The courts in our jurisdiction have always zealously guarded the rights of the innocent spouse, and have refused, in a number of cases, to countenance any attempt to compel the innocent spouse to accept a decree.
In Milliman v. Milliman, 45 Colo. 291, 101 Pac. 58, the plaintiff husband filed his complaint charging the defendant wife with cruelty. The wife filed her answer denying cruelty, and also her cross-complaint alleging that the plaintiff had been guilty of cruelty. She did not ask for a divorce. The case was tried to a jury, which returned into court with a verdict in which both parties were found guilty of cruelty, as charged in the respective pleadings of the parties. In a colloquy between counsel, it became evident to the members of the jury, that under their verdict, neither party to said action could obtain a divorce, and thereupon, one of the jurors announced that the verdict was not his verdict. Whereupon, the jury was polled and each juror answered that the verdict was not his verdict. Counsel for the defendant thereupon asked leave to amend her cross-complaint so as to ask for a divorce; which leave was granted, but, in fact, no amendment was ever made. The jury returned with its verdict, finding the defendant not guilty of cruelty, and finding the plaintiff guilty of cruelty. The defendant objected to the reception of the verdict and filed her written motion, in which she moved, "That no decree of divorce be granted herein." She also announced, in her motion, her refusal to amend her cross-complaint praying for a divorce. The court, upon consideration, denied the defendant's motion, and entered a decree of divorce in favor of the defendant upon her cross-complaint. This court, speaking through Chief Justice Steele, said (page 294):
"The judgment of the court, in refusing the defendant permission to withdraw her request for amendment, is the equivalent of requiring her to procure a divorce over her objection, and is the equivalent of granting to the plaintiff a divorce to which he was not entitled.
"We shall ignore a discussion of the assignments of error which relate to the irregularity of the proceedings by the jury, and shall decide the case wholly upon the proposition that either party in a divorce proceeding, at any time prior to the entering of the decree, has the right to withdraw a demand for a divorce; and that the court cannot compel one to take a divorce when he does not desire to have one. It would be contrary to public policy in a case such as this, to permit the decree for divorce to stand. If the defendant did not desire a divorce, we know of no power or authority of a court to grant her one over her protest."
It is a familiar rule of equity that: "He who comes into a court of equity, must come with clean hands." In the instant case, it is the guilty party who asks a court of equity to enter a decree, nominally in favor of his wife, but in reality in favor of himself, for it was he who sought the divorce in the first instance. He was, by solemn findings of the court, held so derelict in keeping his marital promises as to entitle the defendant to release. It was the husband who was found guilty, and therefore, the court could not, under any circumstances, grant him relief, so that resort had to be had to subterfuge. By forcing a decree upon the one entitled thereto, the guilty party in reality prevailed.
It has been said that the policy of the court should be to discourage, rather than encourage, divorces. The wife may well be entitled to a divorce, but whether or not she will exercise that right is optional with her, and in the instant case, she does not see fit to exercise it.
It may be said that her reasons for refusing are entirely mercenary, but this is unimportant. As was well said in the case of Gilpin v. Gilpin, supra: "We are aware that the ready question of modern public sentiment will be: `Why does not defendant allow plaintiff a divorce if his conduct has been as cruel and distasteful to her and her family as she herself alleges?' It is not necessary for us to answer this question. Still, it is not difficult to surmise reasons satisfactory to her, and perhaps to others. It is no concern of ours whether such reasons please the multitude or not; it is sufficient for the ear of justice that she is entitled to the enforcement of the law for the protection of herself and children in this regard. The fact that so many parties in divorce proceedings contend for nothing except money is no reason why the law should not be administered impartially * * *."
In Willoughby v. Willoughby, 71 Colo. 356, 206 Pac. 792, we have a situation somewhat similar to the one in the instant case. The plaintiff husband brought suit in the district court, in which he prayed for a divorce from the defendant wife. The defendant filed her answer and cross-complaint, in which she also asked a decree of divorce from the plaintiff. At the trial the plaintiff announced that he desired to proceed to trial upon the allegations of the cross-complaint, as it was not his purpose to proceed with the trial upon his complaint. No formal order was made dismissing the complaint and answer thereto. Upon the trial the plaintiff was found guilty of the charges made by the defendant and findings of fact and conclusions of law were regularly entered. When the six months period, provided by statute, had nearly expired, the defendant, the successful party in the action, filed her petition to set aside the findings of fact and conclusions of law; asked for a new trial; petitioned for leave to change the prayer from that of divorce to separate maintenance, and, in the event her prayer should not be granted, the action be dismissed without prejudice. The plaintiff resisted the petition of the defendant, and also moved that a final decree be entered in favor of the defendant and against the plaintiff. The court set aside the findings of fact and conclusions of law, and also denied the plaintiff's motion to enter a final decree of divorce for the defendant, and dismissed the action. At page 360, this court, speaking through Mr. Justice Denison, said: "The first and principal assignment is that the court erred in setting aside the findings and conclusions and in denying plaintiff's motion for a final decree. We think the court was right. To refuse would be to force defendant, the innocent party, to take a divorce against her will. Milliman v. Milliman, 45 Colo. 291, 101 Pac. 58, 22 L.R.A. (N.S.) 999, 132 Am. St. Rep. 181. We do not agree with plaintiff in error that S. L. 1917, p. 184, § 10 changes the law in this respect. We can see nothing to indicate such intention. Some other states hold likewise and some otherwise, but we agree with the principle on which this court rested the Milliman decision."
Upon an examination of the statute governing divorce actions, at the time of the Willoughby decision, supra, we find it contains this provision (S. L. 1917, p. 184): "If the findings of fact and conclusions of law have not been set aside within six months from the day on which they were filed, and no motion to set them aside remains unheard and undecided, the court shall grant a divorce to the party entitled thereto according to the said findings of fact and conclusions of law."
In Johnson v. Johnson, 78 Colo. 187, 240 Pac. 944, the facts stated disclose that the plaintiff wife brought an action for divorce against the defendant husband, and in her complaint relied upon an antenuptial agreement which she specifically asked the court to enforce as to alimony. The defendant filed a pleading denominated an answer, in which he admitted only the execution of the antenuptial agreement, and neither admitted nor denied the allegations of the complaint. Findings of fact and conclusions of law were regularly entered in favor of the plaintiff, and sixteen months thereafter the plaintiff filed her motion asking that the findings of fact and conclusions of law be set aside so far as they pertained to alimony. The defendant filed two motions, one asking that her petition to set aside the findings of fact and conclusions of law be stricken, and the other, that a final decree of divorce be entered. Both motions were granted, and the final decree issued. While there is language in the opinion which would indicate that the court was approving the action of the trial court, in granting the decree upon motion of the defendant, yet, an examination will disclose the fact that the matter before this court was a "motion for alimony, suit money and attorneys' fees pending the proceedings in this court." And the order was "Motion denied." The statute, at the time of the Johnson decision, supra, is the identical statute under which this case is considered.
In 15 R. C. L. 577, section 10, we find the following: "10. Duty of Court to Render Judgment. * * * Not only may the court have authority, but it may be its duty, to render judgment either on the motion of the plaintiff or on motion of the unsuccessful party."
As authority for this statement, reference is made to Carlson v. Benton, 66 Neb. 486, 92 N.W. 600. An examination of this case will reveal the fact that the plaintiff was the unsuccessful party in an action for damages, the jury returning a verdict for the defendants. The plaintiff had filed his motion for a new trial, which had been overruled, but no judgment entered. At a subsequent term of court, judgment was rendered at the plaintiff's request. The opinion, with reference to rendition of judgment, being as follows: "The judgment is the logical product of the prior proceedings in the case. With the record of such proceedings before it, the court not only had authority, but it was its duty, to render the judgment. It is also true the record shows that the judgment was rendered on the plaintiff's motion. The motion was made at a term subsequent to the term at which his motion for a new trial had been denied. He had a right to a hearing in the court of last resort. A final judgment was necessary to that end. It would be a mockery of justice to deny him a hearing in this court because he asked the trial court to do that without which he could not obtain such hearing."
This case can be easily and logically distinguished from the case at bar. It must be remembered that the instant case was tried as a non-contested action for divorce, and the plaintiff, so far as the record discloses, made no objection nor saved any exception to any ruling of the court, and could not, under the circumstances, be heard in this court, so far as any matter considered by the court at the time it made and entered its findings of fact and conclusions of law.
In the Carlson case, supra, the plaintiff had been diligent in presenting his matters to the court, and had made proper objections to entitle him to have his matter reviewed by the Supreme Court of that state; not so here.
In 19 C. J. 159, § 402, in discussing interlocutory decrees and decrees nisi, we find the general statement: "A plaintiff who has obtained an interlocutory judgment cannot be compelled by defendant to have a final judgment."
The authority cited for this statement is Bishop v. Bishop, 82 Misc. 676, 144 N. Y. S. 143. The defendant, who was the unsuccessful party in a contested divorce action, moved for final judgment, or in the alternative, for an order vacating the interlocutory decree. This motion was opposed by the plaintiff. It would seem that there was no statute in force with provisions similar to ours. The court there said: "The plaintiff opposes the granting of the final decree, stating that she does not desire to avail herself of the provisions of the interlocutory decree, and that since obtaining the same she has determined that it is better, for the sake of her children, that she condone the acts complained of and continue the marital relation. It has been held in this state that under such circumstances the plaintiff cannot be required to divorce the defendant against her will. * * * The present unsettled status of the parties cannot, of course, be permitted to continue. The plaintiff must decide definitely upon one course or the other." An order was entered requiring the plaintiff to either accept the decree, or upon her failure so to do, the interlocutory decree would be vacated.
[7, 8, 9] We are not unmindful of the fact that ultimately the question of public policy is for the legislature. When that policy is unequivocally declared the declaration binds the courts. In this jurisdiction many statutes, and an unbroken line of decisions, have established a given policy; i. e., the marriage relation lies at the foundation of our civilization: It is the promoter of public morals and the conservator of social order: Its continuance is favored and its dissolution frowned upon: The state itself is a party to every divorce action and no decree inimical to its interests will be granted: No one, having just grounds for divorce, is obliged to assert the same, or forbidden to withdraw such assertion when made: And no one, innocent of offense against the marital relation, is obliged to submit to its dissolution. That policy is not limited to Colorado. It is substantially the public policy on that subject of every state in the Union, and is in the main the predominating policy of the civilized world. The statute now under consideration, if literally enforced, would substitute for that policy one which frowns upon the marriage relation and favors its dissolution; which ignores the state as a party and favors the entry of decrees inimical to its interests; which forbids one who, having just grounds for divorce, has once asserted the same, from withdrawing that assertion; and which obliges one innocent of offense against the marital relation to submit to its dissolution. The inevitable conclusion from such a policy is that the marriage relation does not lie at the foundation of our civilization and is not the promoter of public morals and the conservator of social order. Assuming that the legislature is not forbidden by the Constitution to make such a declaration of public policy, we can only say that it must be made in much more definite and unequivocal language before we will be willing to impute to that body a design so shocking.
The defendant in this case, because she delayed beyond the six months period fixed by statute, is placed in the identical position she would have occupied if it had been determined that she, instead of her husband, was at fault. He is placed in the advantageous position of securing what he desired, and the very thing to which he would have been entitled had he been found to be the injured instead of the injuring party, for it was the husband who commenced this action, and forced the defendant to occupy the unfavorable position of either permitting him to secure a divorce from her, upon grounds that did not exist, or come into court and place herself in the humiliating position of alleging and proving the husband's shortcomings. It is obvious that if she had but filed an answer denying the charges of her husband, that she could not have been compelled, upon proof of his dereliction, and her innocence, to accept a decree, and why should he then be placed in a position to compel her to accept one for which she asked, and which she does not now desire.
The guilty party's standing in court does not commend him to its favorable consideration. It may be said that he is neither married nor divorced, and that may be true, but he is the victim of his own wrongdoing, and if he is compelled to continue throughout life in this unenviable position, it must be remembered that it is due to his, and not the defendant's fault. The unsettled and unsatisfactory position of the plaintiff, with respect to his marital relations, is no better or worse than it would have been had the defendant insisted upon her rights under her original cross-complaint, praying for a decree of separate maintenance, which is a remedy authorized by statute for one who has just cause for complaint against an unfaithful spouse.
The act in question is so mandatory in its provisions that there can be no discretion whatever exercised by the court. For the purpose of illustration, assuming that findings of fact and conclusions of law have been entered in an action between husband and wife, and immediately thereafter the parties again resume the marital relation, but neither files a motion to set aside the findings within the period of six months, and under these circumstances, either party should ask the court to enter its decree, and should openly admit that since the findings they had cohabited and fully consummated the relationship of husband and wife, would it be possible for either spouse to obtain a decree under this statute? No court in the land, exercising equitable powers, would for a moment hesitate to set aside its findings under the conditions just mentioned, and to do otherwise, would shock the sense of decency of all mankind.
(b) Article III of the Constitution of the state of Colorado reads: "The powers of the government of this state are divided into three distinct departments — the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted."
The statute in question, it will be observed, leaves no discretion whatever in the courts, and by it the legislature has undertaken to direct a court, exercising equity jurisdiction, when, to whom, and at whose behest its decree shall be granted. The legislature has, by its statute, virtually determined that the equities of the case shall be disregarded, and that the guilty shall stand on an equality with the innocent. It will be conceded that the legislature may abolish all divorces, and thus deprive the courts of jurisdiction in these cases, but when the legislature has enacted its statute prescribing the grounds of divorce and the steps necessary to be taken to give the court jurisdiction, it has fully discharged its duty and completely exhausted its powers. When the court has once acquired jurisdiction, it must be left to determine the case and issue its decree in accordance with the well-established rules prevailing in that jurisdiction. The legislature may, in its wisdom, provide that no decree shall issue within a certain period, but when it undertakes to determine, that after the expiration of that period, the guilty have been completely absolved from the consequences of their guilt, and can then demand the court's decree, either with or without the express opposition of the innocent, it has over-stepped.
An examination of the reports in those states having statutes similar to ours fails to disclose that any determination of the constitutionality of the statute, with reference to the encroachment upon the judiciary by the legislature, has ever been raised. We are aware that in Parsons v. Parsons, 70 Colo. 154, 198 Pac. 156, the constitutionality of a statute similar to this was in question, and that we then held the statute constitutional. In so far as the opinion in the Parsons case, supra, is in conflict herewith, it is expressly overruled.
The statute in question directs the doing of a judicial act, and prescribes the method of doing it. It directs, in unequivocal terms, that the court shall grant a divorce to the party entitled thereto upon the motion or application of either party to said suit or action. The granting of the decree of divorce is not a ministerial act, for it is to be done by the court, and so it is a direction to the court to do an act, which, without the statute, the court should not, and probably has not the power to, do. It compels the court to grant a divorce to an unwilling suitor because the other party to the action desires the innocent and unwilling suitor to have that to which she has been declared to be entitled.
In Gloyd v. Superior Court, 44 Cal. App. 39, 42, 185 Pac. 995, it is said: "From the law as thus settled and determined it becomes clear that the entry of a final decree of divorce is a judicial act and not merely a clerical act consequent upon a previous judicial act."
In Colorado the statute, by its direct terms, requires the court to act, after the six months' period has expired, and it would therefore seem plain that in so doing it is requiring a judicial act, and yet, under its terms there can be no judicial discretion, nor can the court do otherwise than grant the decree to the party entitled thereto, upon the application of the party clearly not entitled to relief.
In Olson v. Superior Court, 175 Cal. 250, 251, 165 Pac. 706, Josie Olson sued and obtained an interlocutory decree of divorce from Albert Olson, the interlocutory decree being entered on May 13, 1910. Thereafter, and in February, 1911, the wife, at the solicitation of the husband, became reconciled, and returning to his home, resumed the marital relation. They continued to thus live for a period of five consecutive years, and on February 21, 1916, the husband secretly caused a final decree of divorce to be entered. This decree the wife caused to be set aside on her application, made within six months from the date of its entry. Thereafter, the husband again petitioned for, a final decree, and upon the court's refusal to grant it, brought this action in mandamus. The statute of California, Civil Code, Deering, 1915, section 132, in force at that time, and which the court construed, reads as follows: "When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion may enter the final judgment granting the divorce."
The court held "That the word 'may,' as thus employed in the statute, means 'must' whenever the facts are shown entitling the movant to such final decree requires no discussion. Petitioner's argument is based upon the proposition that when one year has in fact elapsed the right is absolutely final. * * * Under our divorce laws the interlocutory decree fixes the right of the blameless spouse to a decree of divorce as and of the time when the interlocutory decree itself is given. * * * all matters therein litigated have passed beyond the possibility of future litigation, but it is never to be forgotten that the interlocutory decree does not sever the marital bonds. It is merely a declaration that one of the spouses has at that time established a right to a final decree which will be entered at and after the expiration of one year. (Estate of Dargie, 162 Cal. 51, [ 121 Pac. 320].) * * * They lived together as husband and wife continuously for five years thereafter, at the end of which time the condonee, not the condoner, demands of the court the entry of the final decree severing the bonds of matrimony between himself and his wife, with whom he had thus been living. From its very nature the interlocutory decree can only operate upon facts existing down to the time it is given. It is within the contemplation of the law that facts subsequently arising should have their influence in determining the right to a final decree. While in every proper case a trial court will, and if necessary by mandate will be compelled to, enter such a final decree, it would be a grave reproach to our jurisprudence to hold that our law ever contemplated that such a decree could be forced upon a blameless and nonconsenting wife after such a reconciliation. Our law demands no such thing. It never designed to make itself an instrument of such frauds. The similar law in the state of New York entitles either spouse to a final judgment after three months 'unless for sufficient cause the court in the meantime shall have otherwise ordered,' and under that statute the court refused a final decree where a reconciliation was effected such as is here shown. (Cary v. Cary, 144 App. Div. 846, [ 129 N. Y. Supp. 444].) But in the absence from our statute of this express language found in that of New York, the power of our courts is no different. The New York statute but expressed the power which our courts in equity inherently possess. They have under our present statute and without express authorization the power to recognize condonations and reconciliations such as are here shown and to do justice to the litigants as may be demanded by such events in their lives as have arisen subsequent to the entry of the interlocutory decree and before the expiration of the fixed period of one year.
"It would, in our view, be superfluous to elaborate upon a proposition so plainly consonant with the principles of equity and the due administration of justice."
It will therefore be noted that in California, while the word "may" as used in the statute is construed to be mandatory, that even then courts of that state use some of the equity powers inherent in general courts of equity to avoid the consequences of the mandatory provisions of the statute. In other words, the courts do as equity and good conscience dictate.
In Colorado the statute is mandatory, and by no possible construction can discretion be read into it. When, we might ask, does equity and good conscience, and a true conception of the marriage relation, justify a court exercising equity jurisdiction in granting a decree of divorce to an unwilling spouse because the other spouse, being found at fault, desires to be rid of the marital obligation? If the statute in Colorado is to be given its literal interpretation, neither fraud, collusion nor cohabitation, such as was found in the California case, could be considered by the court. It may be that the legislature was unfortunate, in the use of the language employed, but if that be so, it is for it to correct rather than the courts to legislate by judicial interpretation.
(c) It may be said that the granting of the final decree is a matter of procedure, and therefore the legislature has the right and power to regulate it by its enactments. The Gloyd case, supra, clearly and definitely settles this matter, and a reading of our statute would seem conclusive upon this point. However, if the signing is a matter of procedure, it is, perhaps, exclusively a matter for the courts themselves. We seriously question the power of the legislature to make any rules or to enact any laws relative to procedure in courts. It is doubtful if the legislature in Colorado could have enacted any law with reference to procedure in courts of record unless that power had been expressly or tacitly surrendered to it by the judiciary. Assuming, but not admitting, that the judiciary had so lost its right, or had so surrendered it, or a part of it, to the legislative branch of government, so that the two exercised it concurrently, that can not now be the law in Colorado, for in 1913 the legislature expressly enacted a law recognizing the right of the courts to make rules with reference to procedure. The statute being as follows (S. L. 1913, p. 447, chapter 121.): "The Supreme Court shall prescribe rules of practice and procedure in all courts of record and may change or rescind the same. Such rules shall supersede any statute in conflict therewith. Inferior courts of record may adopt rules not in conflict with such rules or with statute."
[15, 16] In conclusion, we hold that the court below had jurisdiction, and it was its right and duty to make any changes in its orders, respecting future payments to be made by the plaintiff to the defendant, as might be necessary by reason of the changed condition of the parties. We further hold that in so far as the amendatory act of 1925 attempts to empower and direct the court to issue its decree upon application of the guilty party to a divorce action, and only so far, it is not only against, public policy, but is unconstitutional. We do not hold, and must not be understood as holding, that in a case where a decree is withheld for an unreasonable time, and the defeated party has rights which he wishes determined upon review, that he cannot have an order of court requiring the successful party to either accept the decree or the dismissal of the action.
The judgment is therefore reversed and the cause remanded to the court below, with instructions to set aside the final decree and reinstate the findings of fact and conclusions of law, and for such further proceedings as are not inconsistent with the views herein expressed.
MR. JUSTICE BUTLER dissents.
The plaintiff was found guilty of cruelty, and not adultery, as inferentially stated in the opinion.
It has been suggested, on the application for rehearing, that our statement concerning the subject of practice and procedure casts a doubt upon the validity of the entire Code of Civil Procedure. It was not so intended. No doubt of the validity of that code is entertained.