JEROME GEORGE KORKOYA, Appellant, v. ORA KORKOYA, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard: April 19, 1994. Decided: September 22, 1994.
- Where a party contends that the verdict of the jury is contrary to the instruction of the court and the evidence, it is incumbent on him to show to the court the specific aspect of the instruction and evidence the verdict was contrary to.
- A divorce suit, while on its face is a mere controversy between private parties of record, is a triangular proceeding sui generis wherein the husband and wife and the state are parties; hence, before a party is entitled to a divorce, there must be proof that the complaining party is the innocent and injured party.
- The right to a divorce exists only by legislative grant, the marriage contract in this respect being regulated and controlled by the sovereign power and, unlike ordinary contracts, subject to dissolution by the mutual consent of the contracting parties; it is only dissolved for causes sanctioned by law.
- Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.
- To maintain an action of divorce for incompatibility of temper, the complaint must include the statutory language that life together between plaintiff and defendant has become dangerous to the plaintiff.
- In an action of divorce, where the complaining spouse has not been guilty of misconduct, which is primarily responsible for the state of incompatibility, the trial court does not have the right to deny the divorce; but that if the incompatibility arises from the misconduct of the complaining spouse, the trial court is vested with a broad discretion in the granting of a divorce.
- Incompatibility eludes exact definition but it refers to conflicts in personalities and dispositions which are so deep as to be irreconcilable, and which renders it impossible for the parties to live together in a normal marital relationship.
- A litigant in a divorce case cannot establish incompatibility on his part; incompatibility is always mutual; is a two-way proposition and should not be applicable where the party seeking the divorce is the only one who is incompatible.
- Incompatibility does not refer to petty quarrels and minor bickering which is merely evidence of normal human frailty.
- When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose but to make sure that the attempt will not prevail without sufficient lawful cause shown by the real facts of the case
Appellant Jerome Korkoya instituted an action of divorce for incompatibility of temper. In the complaint, he alleged that “defendant was so quarrelsome and pugnacious such that life between them had become so unbearable and intolerable.” Defendant denied the allegations. Upon a regular trial, the jury returned a verdict in favor of the defendant, to which plaintiff noted his exceptions and moved for a new trial. The motion was resisted, argued and denied, and final judgment rendered affirming and confirming the verdict. It is from this final judgment that appellant/plaintiff appealed to the Supreme Court.
On appeal, appellant contended, among other things, that the verdict was contrary to the instructions of the court and should therefore have been set aside and a new trial awarded.
The Supreme Court upheld the ruling of the trial court in denying the motion for a new trial on the ground that the plaintiff did not specify what instructions the jury did not adhere to, and that the plaintiff did not make any effort to show the court specifically in which respect the verdict was contrary to the evidence or to the instruction of the court . The Supreme Court affirmed the final judgment, holding among other things that the right to a divorce exists only by legislative grant, and that the marriage contract is regulated and controlled by the sovereign power, and that unlike ordinary contracts, subject to dissolution by the mutual consent of the contracting parties; a marriage can only be dissolved for the causes sanctioned by law. The Court also held that for one to maintain an action of divorce for incompatibility of temper, the complaint must contain the statutory language that “life together between plaintiff and defendant has become dangerous to the plaintiff,” which the complaint in the instant case does not contain. Accordingly, the Supreme Court affirmed the judgment of the trial court.
M Kron Yangbe appeared for appellant. Toye C. Bernard appeared for appellee.
- JUSTICE SMALLWOOD delivered the opinion of the Court.
On the 25thday of May, A. D. 1992, the appellant herein filed a three-count complaint against his wife, Ora Korkoya, appellee, in which he alleged that he and the defendant were married on the 25th day of July 1987, in the City of Monrovia, Montserrado County, Republic of Liberia . He further alleged that they lived together as husband and wife in peace and harmony until the beginning of the month of January A. D. 1992. The plaintiff alleges that it was at the beginning of January 1992, that his wife, the defendant, became unmindful of her marital vows and covenant and became “so quarrelsome and pugnacious” such that life between them had become “too unbearable and intolerable”.
The appellee for her part, while conceding the truthfulness of the date and place of marriage, added, that prior to the date of their formal marriage, they had cohabited together for five years. She, however, denied the allegation of incompatibility and that during their coverture she was never quarrelsome and pugnacious to the extent that life between them had become “unbearable and intolerable”. She added that on the contrary, throughout her relationship with and marriage to plaintiff she was a “loving, caring and devoted wife in which she succeeded”.
The case went to trial on July 12, 1993, before a jury under the direction of the court and continued through August 12, 1993, when both parties rested evidence and argument was had on August 13, 1993, with the judge charging the jury in writing on the same day, August 13, 1993. The jury deliberated and returned an unanimous verdict in favour of the defendant, the appellee herein on the very day, August 13, 1993.
The appellant entered on the records of the court his exceptions to the verdict and gave notice that he would file a motion for a new trial, which he filed on the 18th day of August, 1993. Resistance to the motion for new trial having been filed, the court assigned the hearing of the said motion for September 9, 1993. The appellant movant waived oral argument on the motion for new trial, but with the permission of the court appellee made a three minutes argument. The court then proceeded to rule on the motion, denied same and sustained the resistance. The appellant noted his exceptions to the ruling and the judge then rendered his final judgment on the verdict. Plaintiff again excepted to the final judgment and announced an appeal to the Supreme Court of Liberia, which was granted.
The appellant filed a four count bill of exceptions, in count 1 of which he contended that in his motion for new trial he alleged that the verdict was contrary to the instructions of the court and therefore the verdict should be set aside and a new trial awarded, but that the judge denied the motion on the ground that the appellant did not specify what instructions the jury did not adhere to even though the appellant had asked the court to take judicial notice of the record in respect to the charge to the jury. He also contended that the court was bound to take judicial notice of its own records and a request need not be made of the Court by the party alleging its existence.
In count 2 of the bill of exceptions, the appellant contends that assuming that the judge was correct in saying that the appellant should have pointed out in detail the portion of the charge which was ignored by the jury, he states that the appellee, in her resistance, asserted that the verdict was in keeping with the evidence adduced at the trial without stating specifically what was the evidence or instruction of the court and that the court ignored the trial records and relied solely on the motion and resistance.
It is contended in count 3 of the bill of exceptions that under the law and practice, regardless of a denial in the pleading, where the facts testified to at the trial were not denied, the allegation testified to at the trial are deemed “conceded and admitted”.
The judge in his ruling on the motion for a new trial said:
“The court notes that even though counsel for movant/ plaintiff has contended that the verdict was contrary to the weight of the evidence, the plaintiff has made no effort to show the court specifically in which respect, the verdict was contrary to the evidence or to the instruction of the court. Plaintiff has not done so in his written motion and he has waived argument on the motion … The court says that in the absence of any showing that the verdict was contrary in a specific way to any aspect of the evidence or the instruction of the court, then a motion for a new trial such as this, certainly cannot stand, and the court so holds.”
Appellant’s counsel in his brief and argument before this court cited the case of Phelps
- Williams, 3 LLR 58 (1928). In that case the court was referring to a judgment of the court when the court said: “It does not matter whether or not the judgment is pleaded. Every court is bound to take judicial cognizance of its own records; and no evidence of a fact of which the court will take such notice need be given by the party alleging its existence”. In the instant case appellant, plaintiff in the court below, contended that the verdict of the jury was contrary to the instruction of the court and the evidence; hence, it was incumbent on the plaintiff to show to the court the specific aspect of the instruction and evidence the verdict was contrary to. He who alleges the existence of a fact is bound to prove it. The trial judge in concluding his ruling on the motion for new trial said:
“In view of the above, it is therefore the ruling of the court that the plaintiffs motion for new trial, not being supported by the law nor the facts in this case cannot be granted and is hereby accordingly denied, and the defendant’s resistance thereto hereby sustained.”
It is therefore very clear that the judge took notice of the evidence and his instruction to the jury before ruling as he did. Counts 1 and 2 of the bill of exceptions are therefore not sustained.
In the 3rd and 4th counts of the bill of exceptions, the appellant contends that the appellee, defendant in the court below, did not deny the allegations testified to by the appellant, but admitted the same and yet the jury returned a verdict for the appellee and the court confirmed the said verdict and rendered final judgment thereon.
This being an action of divorce for incompatibility of temper, we deem it necessary to recite some of the testimonies of the parties to this divorce action. The appellant who is the husband did not make any general statement, but, in answer to a question from the jury said:
“As I said during the beginning of 1992, my wife did not only become quarrelsome, but developed hostile attitude as well as uncivilized attitude towards me. For example, she goes to my office before knock off hour every day and insist that we leave together as early as 4 o’clock. This really created problem on my job; further to that she took herself on one occasion to damage a Toyota car; not only that, she also damaged four windows of a house belonging to a lady she alleged I was friendly with. More to that she jumped on my company driver for the key to my car, when the driver refused, she took a sharp instrument and damaged the lock of the car, when I asked her why she did it, she insulted me and jumped on me for a fight. On another occasion, while my driver took my little daughter to the hospital, she misled him into believing that I had something for her in the glove compartment of the car, when the driver opened the glove compartment, she took away $4,500.00 dollars of company money that I had in the car. On many evenings, she even went with switch in her hands looking for me. These are few of the misbehavior I can remember”.
The wife, who is the defendant in this action, made a very long statement but for the benefit of this opinion we shall recite the following portion of her testimony:
“Then early February he said Ora, I’m just trying to wait until Telecom can call you back to work because you and myself can’t make it anymore. From this remark, I began to worry, because my husband and myself were fine. Some day when I become so bored, I will stroll from 4:p.m. in the afternoon and every time I did that, I saw my husband driving from the Refinery with a short black lady going to Barnesville Estate. I tried to observe for two weeks. Sometimes I will see this black lady driving this car herself. One day in March, when I was ironing my husband clothes to go to work on Friday morning, I asked him, Jerome, do you know a lady named Jama Jensen? He said no. He got ready and went to work. He came home very late that night and he refused the food that I prepared. On Saturday morning, I was fixing his clothes again to go work, his face was not pleasant. I said Jerome why you don’t want to laugh with me this morning? He answered, you girl, you are the least of my thinking. I said but your clothes are ready. He got ready for work. When he got on the porch, I went to the door to see him off, he said Ora, knowing about Jama Jensen is a life time frustration for you. I said Jerome, I know you don’t know the girl. He said I clipped your wings in this Monrovia town. From there my husband made a regular habit to sleep at Barnesville and come in the morning. I went over to the sister, to his step ma, Mrs. Ada Korkoya and said you have to call a family meeting because Jerome is going astray. They tried to have us come to a meeting so as to resolve Jerome and Jama issue at an early stage, but he said he was not going to attend any meeting. Friends that took part in our wedding came in to talk with him, but could not get him to sit down to talk.
On April 9, 1992, I left that morning and went to Barnesville Estate. I was not vexed over anything. I went calm to Mrs. Jensen’s house. I met a lady who was her neighbour. I asked her, is Jama anywhere around? She said reach to B-12, that is her mother’s unit but she lives in there. When I got there I met Mrs. Dorothy Blacket, the mother of Jama Jensen. I asked her for her daughter. She said she is getting ready to go to the clinic. But who are you?. I said to her, I am Mrs. Ora Korkoya, then she turned to me and said, are you Jerome Korkoya’s wife? I said yes. She said go and come in the evening because my daughter is too busy now and she will not be able to see you. At the time while talking there was a Mini Bus belonging to LPRC parked to Jama’s front door waiting to take she and her son to school and work. I told her mother that what I want to tell Jama wouldn’t take me a minute to say. I just want to find out from Jama if she knows Mr. Jerome Korkoya. She said pass from my back door. And I went over to the Bus to wait for Ms. Jama Jensen. While I was standing by the bus, Jama left her room, came into the living room with a pen knife pointing it at me. She was in the house and I was outside. She said to me I do not know Mr. Jerome Korkoya and by the way, have you ever met us together? I said fine, that what I want to get from you. Her mother went to the car and said to the driver, Jama will not go with you. Carry the boy to school and go back to the office. Tell Mr. Jerome Korkoya that a mad woman has come over here this morning to disturb us. When the bus took off, the woman began to insult me and these are some of the things she said to me. “You call yourself a married woman and you are not wearing any thing decent, you should be ashamed of yourself. Do you see how my daughter is dressed? I said yes, I saw her, because she has gotten into my life and taken all of my husband’s money. I left their yard and went over to my sister-in-law, Ellen Korkoya, who lived at B-54, the same Barnersville.
Prior to his filing this divorce case, on April 9, 1992, he moved in with Jama Jensen. It was the same day she sent me to jail. While we were at the house, he sleeps with Jama and comes to my house in the morning to get ready for work. Jama would keep all of his dirty clothes and send them to my house on Saturday morning for washing. He could barely leave food with us. Many days I have to write to beg him for food. Every blessed day he has money in his car; and he said I fought his driver, that is not true. Mr. Korkoya left Barnesville one morning and came to the house to get dress and my children and myself were starving. I walked over to the driver and said please let me have the car key so I get some money from this car for food. The driver said no. In fact my bossman said that you should never come around this car. I said you know that your bossman is my husband? I have equal right to this car like him. Stretching my hand over to him for the key, my son began to yell calling his father. He said Daddy, the driver want fight Ma for the key. Jerome came on the porch and told the driver not to give me the key. And my life at that time was kind of frustrated. Then I said o.k., I will wait for you Jerome to come and get me out of the car. When he got through dressing, he came outside to the car and tried to pull me out of the car.
Because my husband was administrative manager, then controlling all of the vehicles at the refinery, he could use any car at anytime. He slowed down and spoke to a lady that was walking ahead of me and didn’t say anything to me and then passed drove toward area B. I thought he was going to his sister’s house B-54 but he turned to B-12. I went after him and he parked the car in front of B-12, around the football field, and got down. I said: Jerome don’t go in that house because the lady in the house does not know you and you don’t know her (Jama Jensen). He hissed his teeth and went walking to the house. Jury and my people in this court, because my husband made small out of me and ignored me, I was mad for placing the girl friend before me, I cracked the windshield on the car then went to the door and said Jerome, please leave this house. Jama, please open the door for my husband to come out of the house but no one opened the door. Then the second hit, they opened the back door and I saw my husband running out and Miss Jama Jensen. When I saw my husband has left the house, I put the spoon down and went on my way. I went to Ellen Korkoya’s house, the sister. I began to cry; then I said to her I have done something I have never done before in my life. Jerome made me to spoil a car and window glass from Jama’s house. She said he had no business being there since you met him in the house. I decided to go home. While we were there Jerome came in a mini Bus with my little son and driver along with the Sheriff from the Magisterial Court, Gardnersville, to arrest me. When he got down from the car he told the Sheriff that is the woman that you came to arrest. Then his sister said, you referred to your wife as that woman, and you are talking about court; who took Ora to court? He said that is none of your business. He got back in the Mini Bus and left.”
Mr. Chief Justice Grimes, speaking for this Court in the case Bryant v. Bryant, 4 LLR 328 (1935), and quoting from treatise of Bishop on the Law of Marriage, Divorce and Separation, 6th ed. volume II, sec. 230, said:
“A divorce suit, while on its face is a mere controversy between private parties of record, is, as truly viewed, a triangular proceeding sui generis, wherein the public, or government occupies in effect the position of third party”. Continuing and quoting from Ruling Case Law, volume 9,sections 11 and 12, he said:
“Marriage is a relation in which the public is deeply interested and is subject to proper regulation and control by the state or sovereignty in which it is assumed or exist. The public relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation. This policy finds expression in probably every state in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight or trivial causes, or by the agreement of the husband and wife, or in any case except on full and satisfactory proof of such facts as by the legislature have been declared to be cause for divorce. Such provisions find their justification only in this well recognized interest of the state in the permanency of the marriage relation. The right to a divorce exists only by legislative grant, the marriage contract in this respect being regulated and controlled by the sovereign power, and not being, like ordinary contracts, subject to dissolution by the mutual consent of the contracting parties, but only for the causes sanctioned by law. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity, the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress”. Section .12: While an action to obtain a decree dissolving the relation of husband and wife is nominally an action between two parties, the state, because of its interest in maintaining the same unless good cause for its dissolution exists, is an interested party. It has been said by the courts and eminent writers on the subject that such an action is really a triangular proceeding, to which husband and wifeand the state are parties. When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose but to make sure that the attempt will not prevail without sufficient lawful cause shown by the real facts of the case, nor unless those conditions are found to exist at the time the decree is made on which the state permits a divorce to be granted. Both the policy and the letter of the law concur in guarding against collusion and fraud, and it should be the aim of he court to afford the fullest possible hearing in such matters. So, on the ground of public interest, the courts are more ready than in other proceedings to relieve against defaults and to grant continuances. To discover and defeat any attempt to use, the form of the law of divorce for vindictive or fraudulent purposes, is a proper exercise of the legal discretion vested in all courts having divorce jurisdiction. The courts are bound to protect the public interests as well as the rights of the parties themselves, and hence before a party is entitled to a divorce it must be made to appear by proof that he or she is the innocent and injured party”. Bryant v. Bryant, 4 LLR 328, 336 (1935).
Cognizant of the fact that every action of divorce is regarded as a triangular rather than a bilateral suit and as judge, he was representing the state, the judge in the instant case was justified in his ruling.
After carefully scrutinizing the complaint filed in this case by the plaintiff and comparing the statute out of which it grows, we have to conclude that the complaint was not framed in the exact language of the statute from which it was drawn. The language of the statute is the following:
“Where, as a result of incompatibility of temper, the defendant is so extremely quarrelsome and intolerably pugnacious to the plaintiff that life together between plaintiff and defendant becomes dangerous to the plaintiff. Domestic Relations Law, Rev. Code, 9:8.1(d).
The complaint alleges that …”life between them had become so unbearable and intolerable”, whereas the language of the statute requires that the pleading includes the boss words that “life together between plaintiff and defendant becomes dangerous to the plaintiff’. The two phrases are completely different phrase from the statute. Certainly “intolerable” and “unbearable” are not synonymous terms with “dangerous”, but “intolerable”, is synonymous with “unbearable”. Therefore the phrase “dangerous to plaintiff’ not forming a part of the complaint, any evidence offered during the trial tending to prove “dangerous” to the plaintiff could not have been accepted. Whether either, both, or neither of the parties is responsible for the incompatibility, … it has also been said that if the complaining spouse has not been guilty of misconduct which is primarily responsible for the state of incompatibility, the trial court does not have the right to a divorce, but that if the incompatibility arises from the misconduct of the complaining spouse, the trial court is vested with a broad discretion in the granting of a divorce. 24 AM. JUR. 2d., Divorce and Separation, §
30.
In Hughes v. Hughes, 363 P. 2d 155 (1961 Okla), the court stated that the term “incompatibility” describes a state or quality of relation between persons or concepts; a litigant in a divorce case cannot establish incompatibility on his part since the concept of incompatibility always assumes mutuality between the parties. The court stated that one spouse may be disillusioned or disappointed in marriage due to some trivial or imaginary difficulty insufficient to destroy a normal and wholesome, matrimonial association, in such case there is no actionable incompatibility. Mutual incompatibility within the terms of the statute, said the court, denotes generally a state of irremediable rift or discord produced by a reciprocal conflict of personalities; it is a condition which by its nature must be bilateral.
Also in Chappel v. Chappel (1956) 298 P. 2d 768, 58 ALA 2d 1214, and Wright v. Wright (1956 Okla), 303 P 2d 428, it is stated that it should not be grounds for divorce where only one of the parties to a marriage is incompatible; incompatibility is a two-way proposition and should not be applicable where the party seeking the divorce is the only one who is incompatible. The court reasoned that the statute did not intend to mean that anyone could obtain a divorce on the ground of incompatibility merely because a divorce is desired. 97 ALR 3d, Note 5, pp. 1000 – 1002. Mr. Justice Dossen speaking for the court in Jones v. Jones, 6 LLR 40(1937), said:
“Comparing the complaint with the Act above mentioned, we find that said complaint is seriously defective and bad, as it does not include the words of the statute defining incompatibility of temper. In our opinion before a divorce can be obtained on said ground it is necessary to prove as an integral part of said complaint, that the defendant was in fact extremely quarrelsome, and so inclined towards pugnacity that the life of one or both spouses was by said pugnacious tendency, endangered. That being so, it becomes necessary, in our opinion, that the allegation should be made in the complaint; otherwise any attempt to prove such tendencies which the enactment makes an important part of plaintiffs case would be irrelevant, and the object of the enactment thereby defeated. “
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. 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. 24 AM. JUR. 2d., Divorce and Separation, § 30, citing note 91, 97 ALR 3d. 989.
The word incompatibility eludes exact definition but it refers to conflicts in personalities and dispositions which are so deep as to be irreconcilable, and which render it impossible for the parties to live together in a normal marital relationship. Incompatibility does not refer to petty quarrels and minor bickering which is merely evidence of normal human frailty.
Assuming that only an “injured party” is entitled to sue for a divorce, each spouse is deemed to be an “injured party” since each has lost the privilege of enjoying a normal marital relationship. It has been held that either party may sue for divorce without showing that the defendant is guilty or by misconduct or fault, or that defendant is responsible for the state of incompatibility that the court may grant a divorce without determining.
In view of the foregoing and the conclusions reached above, we are of the opinion that the judgment of the court below should be and the same is hereby affirmed and confirmed with cost against the appellant. The Clerk of this Court is instructed to send a mandate to the judge presiding in the Sixth Judicial Circuit Court commanding him to resume jurisdiction over the case and give effect to this judgment. And it is hereby so ordered.
Judgment affirmed.