Kalodner, Chief Judge, and Maris, McLaughlin, Staley, Hastie, Ganey, Smith and Freedman circuit Judges.
This is an appeal by the wife defendant from a decree of divorce awarded to the husband plaintiff on the ground of incompatibility of temperament. The appellant contends, inter alia, that the evidence failed to establish a state of incompatibility of temperament under the law of the Virgin Islands and that the district court's finding of such incompatibility was clearly erroneous. If so, the decree based upon that finding must necessarily fall.
The Territory of the Virgin Islands was the first American jurisdiction to adopt incompatibility of temperament as a ground for divorce. Burch v. Burch, 3 Cir. 1952, 195 F.2d 799, 2 V.I. 559. That ground is now set out in 16 V.I.C. § 104(a).*fn1 Subsequently incompatibility has been adopted as a ground for divorce in New Mexico (in 1933),*fn2 Alaska (in 1935),*fn3 and Oklahoma (in 1953).*fn4 In the Burch case this court discussed at some length the nature and scope of this ground for divorce. In our opinion in that case we said "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 enpowered to terminate it as a matter of law." 195 F.2d at 806-807, 2 V.I. 571-573.
In the Burch case we were faced, inter alia, with the question whether the plaintiff could assert that he was injured, within the meaning of the statute, by incompatibility of temperament in which he himself had participated. In deciding this question in the affirmative we said that "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.*fn5 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." 195 F.2d 799, 808, 2 V.I. 574-575.
In the Burch case we were also faced with the question whether the defense of recrimination is available in the Virgin Islands to bar the granting of a divorce upon the ground of incompatibility of temperament or, if not, whether the doctrine of comparative rectitude is available in defense. We held that neither defense is available in such a case but at the same time we pointed out "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, the best interests of the parties and of the public will be served by the granting of a divorce." 195 F.2d 799, 810, 2 V.I. 579. The court must, of course, also weigh the possibilities of personal adjustment and reconciliation and the restoration of a normal marital status in determining whether to exercise its discretionary power to grant a divorce upon the ground of incompatibility. Wegener v. Wegener, Okl.1961, 365 P.2d 728, 730. The incompatibility of temperament contemplated by the statute involves, as we have pointed out, a conflict of personalities and dispositions so deep as to destroy the legitimate ends of matrimony and the possibility of reconciliation. It must be "more than a mere mental process or an afterthought conceived and nurtured in the psyche of the complaining spouse." Hughes v. Hughes, Okl.1961, 363 P.2d 155, 158. Thus, for example, if what the plaintiff claims to be incompatibility consists of nothing more than the objections voiced by his wife to his consorting with another woman as his mistress, the court would certainly be justified in denying a divorce upon the ground of incompatibility as it did in these circumstances in Sachs v. Sachs, D.C.V.I.1957, 155 F. Supp. 860, 3 V.I. 264, affirmed on other grounds, 3 Cir. 1959, 265 F.2d 31, 4 V.I. 102.
It is obvious that if the court is to make a determination which is just to the parties and to society as to the existence of such an irremediable incompatibility as the statute contemplates the evidence should provide it with a full picture of the personalities and dispositions of the spouses and of their attitude and conduct toward each other. It is important for the court to be informed, so far as it is possible, of the cause of the incompatibility which the evidence is alleged to show and whether it is the result of volition or of a predisposition or is congenital. We turn, then, to the testimony in the present case to determine whether it is adequate to support a finding of such irremediable incompatibility as the statute contemplates as a ground for divorce.
Briefly stated, the evidence establishes that the parties were married in 1949 and lived together in Michigan for ten years. Since 1959 they have lived apart. After obtaining a job shortly after marriage the plaintiff worked steadily and supported his family for eight or nine years. The marriage went pretty well during those years. Seven children were born, of whom five survive. In the last eighteen months of their life together, however, the plaintiff became a heavy drinker and he worked less and less. After bouts with liquor he would spend days in bed. He had dissipated an inheritance and they had lost their home through foreclosure. About this time the defendant had hepatitis and lost her seventh child. Unpaid bills piled up. There was, as might be expected, arguing and bickering. On the advice of a marriage counsellor, the defendant instituted in Michigan a suit for separation and support of the children in the hope that it would cause the plaintiff to straighten up and find work. A stipulation for the custody and support of the children was signed. About the same time plaintiff left the defendant and the family home and has not since lived with the defendant. A few months after the separation the plaintiff made his way to the Virgin Islands but he continued his heavy drinking for three years or more and he failed to meet his obligations to support his children. In the last three years, however, he has stopped drinking liquor, has rehabilitated himself and is now earning a living in the Virgin Islands and providing some support for his children.
The foregoing summarizes all of the evidence bearing upon the issue of incompatibility. There is in it no explanation of the cause of the plaintiff's alcoholism. Any inference that this was caused by marital incompatibility is rebutted by the fact that it did not occur at or near the outset of the marriage, but long afterward at the time when he suffered serious financial reverses and that it continued for several years after the separation. The plaintiff's only explanation of the basis of the difficulties of the parties was that "There is something", he did not explain what, "that when we live together I don't work. The marriage doesn't work and then, in turn, I don't work." But even this cryptic explanation is belied by the history of eight or more years of normal married life during which the plaintiff worked regularly and supported his family and during which he fathered seven children. The defendant, moreover, testified that, except for his drinking and consequent failure to support his family, the plaintiff has a wonderful character. She also testified that she believes that if the plaintiff will provide a home for her and the children it will be possible for them to live together compatibly.
We think that the testimony wholly fails to provide any substantial support for the district court's finding of incompatibility of temperament. That finding is clearly erroneous. Whether the extremely sketchy and cryptic character of the plaintiff's testimony is due to a commendable desire to spare the feelings of his wife, as his counsel suggested at bar, we do not know. But for whatever reason it is clear that it falls far short of disclosing a state of irremediable incompatibility of the parties. Indeed all that it does show is that when faced with serious financial reverses the plaintiff took to drink from which he has now freed himself and that the defendant is willing to resume the marital relationship but he, for some undisclosed reason, is reluctant to do so. Here is certainly no disclosure of an irremediable disharmony in their common life.
Since the finding of incompatibility cannot stand the decree of divorce for which it provides the basis must be reversed. Accordingly it becomes unnecessary to consider any of the other contentions of the defendant.
The decree of the district court will be reversed and the cause remanded with directions to dismiss the complaint, with costs and a reasonable counsel fee to the defendant together with the travelling expenses of defendant's counsel to attend the reargument of the appeal in Philadelphia.
FREEDMAN, Circuit Judge, with whom HASTIE, Circuit Judge, joins (dissenting).
I believe the evidence, however sketchy it may be, amply supports the findings of fact of the district judge, and that the decree therefore should be affirmed even though as a trial court we might have reached a different result.
There is no disagreement on the definition and the meaning of incompatibility laid down in Burch v. Burch, 195 F.2d 799, 2 V.I. 559 (3 Cir. 1952). It exists where the conflict in the personalities of the parties is so deep as to be irreconcilable and this condition has existed sufficiently long to justify the conclusion that it is ...