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Mogged v. Mogged





APPEAL from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Iroquois County; the Hon. ROBERT J. IMMEL, Judge, presiding.


The circuit court of Iroquois County entered a decree of divorce in favor of both parties on the grounds of mental cruelty. The appellate court affirmed (Mogged v. Mogged (1972), 5 Ill. App.3d 581), and we granted leave to appeal.

In his complaint, plaintiff Roy Mogged alleged that his wife, defendant Wilma Mogged, was guilty of extreme and repeated mental cruelty. Defendant filed an answer denying the allegations of the complaint and counterclaimed for divorce from plaintiff alleging that plaintiff had been guilty of extreme and repeated mental cruelty toward her. After hearing a portion of the plaintiff's case, which included examination of the defendant as an adverse witness, the trial judge called a halt to the proceedings, over plaintiff's objection, and granted a decree of divorce to each party after stating that it was his opinion that both parties were at fault and that nothing would be accomplished by hearing further testimony.

On appeal by the plaintiff, the appellate court held that the evidence heard by the trial court was sufficient to establish extreme and repeated mental cruelty on the part of each party and stated that "the real question involved * * * is whether the doctrine of recrimination in Illinois * * * should be maintained inviolate, thus automatically precluding a divorce of parties who have each been guilty of marital misconduct of equal stature toward the other, or whether that doctrine must be re-examined, and, in the light of present day reality, be rejected as unsound." (5 Ill. App.3d at 583.) The court answered this question by concluding that the doctrine of recrimination should not be applied in those cases where, in the exercise of sound judicial discretion, it would be unwarranted. In affirming the trial court, the appellate court held further that the trial judge did not err in exercising his discretion in favor of the dual decree of divorce.

Before directing our attention to this particular issue, it is necessary to consider plaintiff's contention that the evidence did not establish that he was at fault. No useful purpose would be served in setting forth the details of the various acts on the part of both parties shown by the evidence. Both the appellate court and the trial court found that the parties were equally at fault, and, in our opinion, those findings were not contrary to the manifest weight of the evidence in the record at the time the trial judge terminated the evidentiary hearing.

The doctrine of recrimination has been the subject of extensive analysis and commentary over the years with most writers recommending its modification or abolition. (E.g., Moore, Recrimination, An Examination of the Recrimination Doctrine, 20 S.C.L. Rev. 685 (1968); Thomas M. Cooley Lectures by Z. Chaffee, Jr., 47 Mich. L. Rev. 1065, 1083 (1949); Bodenheimer, Reflections on the Future of Grounds for Divorce, 8 J. Fam. L. 179; Schoenlaub, No-Fault Divorce, A Practical Approach to the Problems of Marital Failure, 27 Mo. Bar J. 579 (1971); Albers, Judicial Discretion and the Doctrine of Recrimination, 11 J. Fam. L. 737 (1972).) Also, some courts have re-examined their States' respective divorce laws and have found them susceptible of an interpretation which modified and limited the previous application of the doctrine. Notable in this respect is the decision of the California Supreme Court in De Burgh v. De Burgh (1952), 39 Cal.2d 858, 250 P.2d 598, where that court analyzed in depth the origin and development of the doctrine as well as the public-policy considerations involved. The court concluded that the California statute which was then in existence did not require the automatic application of the doctrine of recrimination but instead left to the discretion and duty of the trial judge "to determine whether or not the fault of the plaintiff in a divorce action is to be regarded as `in bar' of the plaintiff's cause of divorce based upon the fault of the defendant." (39 Cal.2d at 871, 250 P.2d at 605.) The court went on to state that dual divorces were permissible in appropriate circumstances. The Florida Supreme Court in Stewart v. Stewart (1946), 158 Fla. 326, 328, 29 So.2d 247, 249, has also held that "[t]he application of the doctrine of recrimination like the doctrine of clean hands is a matter of sound judicial discretion dependent upon public policy, public welfare and the exigencies of the case at bar." Other courts have reached similar conclusions. (E.g., Garner v. Garner (1973), 85 N.M. 324, 512 P.2d 84; Burns v. Burns (1965), 145 Mont. 1, 400 P.2d 642; Flagg v. Flagg (1937), 192 Wn. 679, 74 P.2d 189; Hoff v. Hoff (1882), 48 Mich. 281, 12 N.W. 160.) Some States have enacted divorce legislation which permits dual divorces when both parties are at fault (e.g., Nev. Rev. Stat., sec. 125.120; Iowa Code, sec. 598.10), and California has recently enacted a "no-fault" statute which permits divorces irrespective of fault on the part of either party (Deerings California Code Annot., Civil, par. 4507). We also note that in the Uniform Marriage and Divorce Act (1970), sec. 303(e), the National Conference of Commissioners on Uniform State Laws has recommended abolition of recrimination as a defense in divorce proceedings.

In Illinois, recrimination has long been recognized as a bar to divorce. (See Davis v. Davis (1857), 19 Ill. 333.) After adoption of the 1874 Divorce Act (Rev. Stat. 1874, ch. 40, par. 1 et seq.), which is the basis of our existing act, this court reaffirmed the doctrine. (Bast v. Bast (1876), 82 Ill. 584.) The subject was reviewed again in Duberstein v. Duberstein (1897), 171 Ill. 133, where the court defined the doctrine in the following terms: "`A party charged with cruelty may justify himself or herself by showing that the other party was equally to blame. * * * The law is for the relief of an oppressed party, and the courts will not interfere in quarrels where both parties commit reciprocal excesses and outrages.' * * * Divorce is a remedy provided for an innocent party; (5 Am. & Eng. Ency. of Law, 825, note 6); so that, when each party has committed a cause for divorce, the causes being of the same statutory character, neither can complain of the other." (171 Ill. at 144-5.) The court concluded that when parties are in pari delicto they must be left to themselves. The Duberstein decision has been uniformly applied in all subsequent cases that have examined the effect of different marital offenses as grounds for application of the doctrine. See Peck v. Peck (1959), 16 Ill.2d 268; Levy v. Levy (1944), 388 Ill. 179; Zimmerman v. Zimmerman (1909), 242 Ill. 552; see also Curran v. Curran (1960), 19 Ill.2d 164.

Whether or not the defense of recrimination should be abolished or modified in Illinois is a question involving complex public-policy considerations as to which compelling arguments may be made on both sides. For the reasons stated hereafter, we believe that these questions are appropriately within the province of the legislature, and that, if there is to be a change in the law of this State on this matter, it is for the legislature and not the courts to bring about that change.

It is well settled in this State that divorce is a remedy existing solely by grant of the General Assembly. (People ex rel. Christiansen v. Connell (1954), 2 Ill.2d 332.) As this court stated in Embree v. Embree (1870), 53 Ill. 394, 395-6: "The question of what shall constitute grounds for granting a divorce, or whether the marriage contract shall be dissolved under any circumstances, or for any cause, is one of public policy, and belongs to the legislative, and not to the judicial, department of our government."

The argument has been advanced that the doctrine of recrimination is a product of judicial decision and that it therefore may be abolished or modified by the court if changes are warranted. We do not necessarily concur in the premise that the doctrine of recrimination is solely a creation of the judiciary. Section 1 of the 1874 Divorce Act provides in language identical to that in section 1 of our present divorce act that if the requisite causes of divorce are established "it shall be lawful for the injured party to obtain a divorce and dissolution of the marriage contract." (Rev. Stat. 1874, ch. 40, par. 1; Ill. Rev. Stat. 1971, ch. 40, par. 1.) It must be remembered that at the time the 1874 act became law, the doctrine of recrimination was recognized not only in this State but also in substantially all jurisdictions in this country. (See Davis v. Davis (1857), 19 Ill. 333.) Considering the historical context in which the statute was enacted it could well be presumed that by use of the singular in permitting "the injured party" to obtain a divorce, the legislature did not contemplate dual divorces in situations where both parties were at fault. But even assuming arguendo that the doctrine was a product of judicial decision, we do not believe that it is appropriate for the courts to modify or abolish this particular rule, which has for so many years been recognized as the law of this State in divorce cases. What we stated in Maki v. Frelk (1968), 40 Ill.2d 193, 196-7, is pertinent here: "Where it is clear that the court has made a mistake it will not decline to correct it, even though the rule may have been re-asserted and acquiesced in for long number of years. (Neff v. George, 364 Ill. 306.) No person has a vested right in any rule of law entitling him to insist that it shall remain unchanged for his benefit. (Grasse v. Dealers Transport Co., 412 Ill. 179, 190.) But when a rule of law has once been settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests. (Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11; Heidenreich v. Bremner, 260 Ill. 439, 451.) The rule of stare decisis is founded upon sound principles in the administration of justice, and rules long recognized as the law should not be departed from merely because the court is of the opinion that it might decide otherwise were the question a new one. See Prall v. Burckhartt, 299 Ill. 19, 41."

Furthermore, we believe it is significant that over a period of almost one hundred years during which the doctrine of recrimination as enunciated in the Duberstein case has been established law of this State our legislature has in no manner acted to either abolish or modify the doctrine, although it has limited its application. This occurred most recently in 1967 when the legislature amended the Act by the addition of section 8(a), which provides: "In every action for a divorce commenced on or after the effective date of this amendatory Act of 1967, the fault or conduct of the plaintiff, unless raised by the pleadings, is not a bar to the action nor a proper basis for the refusal of the decree of divorce." (Ill. Rev. Stat. 1971, ch. 40, par. 9a.) This provision, while limiting the application of the defense of recrimination, clearly recognizes its existence and contemplates its application in cases such as the one before us where recriminatory conduct on the part of the plaintiff is raised by the pleadings.

In view of the foregoing conclusions it is unnecessary to consider plaintiff's additional arguments challenging those portions of the decree dividing certain property and awarding custody of children.

Accordingly, the judgments of the appellate court and the circuit court of Iroquois County are reversed. It seems appropriate, however, in view of the fact that the action of the trial court prevented the parties from completing the presentation of evidence, to afford an opportunity for the submission of such additional pleadings and evidence, if any, as the parties may desire and the ...

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