Palmer v. Palmer

72 P. 3, 26 Utah 31, 1903 Utah LEXIS 3

• Court: Utah Supreme Court
• Decided: April 13, 1903
• Docket: No. 1426
• Status: Published

Opinion

BARTOH, J.,

having made the statement of the case as above, delivered the opinion of the court.

The principal and decisive question in this case is whether the contract pleaded and relied upon by the plaintiffs is valid and bars the widow’s right of inheritance. So far as material here, it reads: “Whereas, irreconcilable differences have arisen between W. D. Palmer and his wife, Ida M. Palmer, and in consequence thereof a permanent separation between them is desirable, and a divorce proceeding is in contemplation and will be instituted by one or the other of said parties, for the legal dissolution of the marriage tie existing; and, whereas, the said W. D. Palmer is willing to make a satisfactory settlement upon and with the said Ida M. Palmer in lieu of all claims for alimony against him, either temporary or permanent.” And then, after mentioning the property the wife was to have, which is the same as that described in the pleadings, and making some stipulations in respect thereof, it concludes: “Now, therefore, this instrument of writing witnesseth the mutual agreement, contract and settlement above described, and the said Ida M. Palmer hereby acknowledges the receipt of said sum of money cash in hand paid by him, the said W. D. Palmer, and in consideration thereof as well as the amounts heretofore received, hereby acknowledges full and satisfactory payment by bim of all claims she has against him, and agrees in consideration thereof to, and does hereby, release him from all liability past, present or future for her support, maintenance or comfort, and they both hereby contract and agree so far as they are by law permitted to do, each for the other, to full and final separation and dissolution of the marriage relation, and all responsibility of every character of the one for the other'is hereby forever ended. ’ ’

The appellant, among other things, contends, that this is a contract between husband and wife, entered into for the purpose of procuring a divorce, or of facilitating such a result, and is therefore collusive and void. The respondents insist that it amounts merely to a separation agreement, settling the property rights of the parties, and that it is authorized by the laws of the State of Georgia, where it was made and executed, and should be enforced, through comity, in this State.

Whether or not the contract is valid and enforcible 1 under the laws and decisions of the State of Georgia, it is not necessary to decide, for it clearly appears from the face of the instrument that it is invalid under our laws and decisions; and, when read in light of the facts and circumstances disclosed by the evidence, the conclusion becomes irresistible that it ought not to and cannot be enforced in this State, even if enforcible in the State where made. . The principle of comity cannot be invoked to enforce the laws of a foreign State which are inimical to the interests of the State where their enforcement is sought. Nor will a contract executed in one State be enforced in- another if it is in contravention of the public policy of the latter State. Comity bétween different States requires no State to uphold or enforce contracts which injuriously affect the welfare of its subjects, or contravenes its own laws, insti-tions or policy. In such cases, when the lex loci contrac-tus comes in conflict with the lex fori, comity must yield to the positive law and policy of the forum. Story on Conflict of Laws, sec. 327; Pope v. Hanke, 155 Ill. 617, 40 N. E. 839, 28 L. R. A. 568; Seamans v. Temple Co., 105 Mich. 400, 63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457.

We are clearly of the opinion that- the contention 2 of the' appellant is sound. That the contracting parties contemplated a divorce a vinculo matrimonii seems apparent. Differences had arisen between husband and wife wbicb appeared to them irreconcilable, and in the very first sentence of the instrument it is stated expressly that a “permanent separation between them is desirable, and a divorce proceeding is in contemplation and will be instituted by one or the other of said parties, for the legal dissolution of the marriage tie existing.” This language is plain, unambiguous, and clearly shows that the design of the parties was to ■absolve all marital relations existing between them; and, if there is any doubt that the contemplated divorce was a moving cause for the contract, such doubt would seem to be removed upon perusing the concluding paragraph of the instrument, where they say “they both hereby contract and agree so far as they .are by law permitted to do, each for the other, to full and final separation and dissolution of the marriage relation, and all responsibility of every character of the one for the other is hereby forever ended.” In the face of such language, is it not idle to say or contend, as do counsel for the respondents, that this is a mere contract for separation, and cannot be construed into an agreement to fácilitate a divorce? The parties to the instrument say “a divorce proceeding is in contemplation,” and that they agree, so far as they think the law permits them to do, “to full and final separation and dissolution of the marriage relation.” They, in effect, stipulate that all their marital responsibilities shall be forever ended. It is difficult to see by what process of reasoning such a ' contract can be construed to be anything else than an agreement to facilitate a divorce, or an attempt to put an end to the marriage status by mutual agreement of the parties. It is true it was not stipulated in the instrument which one of the parties was to institute the divorce proceedings in court, but that appears from the ■ testimony. So the consideration and motive which induced the parties to enter into and execute the contract appears from the evidence, as well as upon the face of the instrument itself.

The wife, in substance, testified that before the exe-cation of the contract she was anwilling to have a divorce; that when given to understand that a, divorce was the consideration in order for her to get anything from her husband, who was keeping himself concealed from her, she refused to apply for one; that she then employed Thompkins & Alston, as her attorneys, to assist her in procuring a settlement; that finally, through a mutual friend, her husband offered her the $6,500 mentioned in the contract, in addition to the other property referred to therein; that upon the advice of her counsel to accept it, as the best she could do under the circumstances, and fearing the mortgage of $5,000, which was hanging over her, and which might lose her her home, she accepted the offer, with the agreement that she was to file suit for divorce at once, although she had at first refused to do so; and that the next day after the execution of the contract, pursuant to and in fulfillment of the agreement, the divorce proceedings were instituted by her, the papers for which had been prepared as a part of the settlement. The witness further stated: “The reasons Judge Thompkins assigned for advising me to accept the offer of settlement were that there was no property belonging to Mr.'Palmer in the State that we could attach; that he had the cash, and he could get out of the State, and I couldn’t get service on him; therefore he had put himself in a position where it was thought, if I let that offer go, I wouldn’t get anything at all. ” As to much of this and other similar testimony, the wife is corroborated by that of other witnesses. The witness Alston, speaking with reference to the preparation of the papers for the divorce proceeding before the consummation of the contract, said: “I did that because I knew there would he no opposition to the divorce, as both sides wanted it;” and then, in reference to the question of the settlement, or of fighting the case in the courts, the witness said, “We would have fought it if we had been out in the open, and if he had been where we could have served him. ’ ’ That a divorce was in the mind of at least the husband before the consummation of the contract also appears from a letter in evidence, written by him to his wife, dated July 14,1899, wherein, after informing her that he had disposed of all his property and would leave the State, he said: “"With this letter let all communication cease forever. My cousin Hubert will represent me during my absence. I have instructed him to render any assistance he can in securing a divorce, which seems to be the best thing to do under the existing circumstances.” It is true, the witness Culberson, who was the “cousin Hubert” mentioned in this letter, and the husband’s attorney, at first testified that his client had left him “no instructions relative to a divorce proceeding to he instituted by his wife or himself, ’ ’ but when confronted with the letter dated July 19, 1899, written by the witness to Mrs. Palmer, wherein he said, ‘ ‘ He [meaning the husband] gave me no instructions to sue for a divorce, hut seems to think that was what you’d do and asked me to aid you in all ways possible in event you did,” and in another letter to her dated June 3, 1899, had said, “Of course a divorce is inevitable, and after the settlement is made, if it can be made, the next question would be where the divorce proceedings should be instituted”— he admitted that his client had instructed him to assist in all ways possible to secure a divorce.

Further reference to the evidence in detail would be useless, for, like upon the face of the contract, it is clearly shown by the proof that the procuring of a divorce was in the minds of the parties before and at the time the instrument was executed, and was a moving consideration. The fact that the very next day after the execution of the instrument the wife instituted the divorce proceedings is significant, ,as tending to show that she endeavored in good faith to comply with her understanding of the agreement, although, as seems evident, from a careful perusal and consideration of the evidence, she never entered into the contract voluntarily but simply as the victim of circumstances over which she was led to believe she had no control. The record is quite convincing to the mind that the intention of the husband was to- sever all marital relations existing between him and his wife, and that the wife was induced through unfair means to sign the agreement. Such being the case, the contract must be regarded as one executed for the purpose of facilitating the procuring of a divorce, and not as a mere separation agreement. It amounts to a mutual agreement, in writing, of the husband and wife, to dissolve the marriage and absolve themselves from all marital obligations. 'The 3 agreement, therefore, being one calculated or intended to facilitate the securing of a divorce a vinculo mat-rimonii, is contrary to the policy of the law and is void. The law is well settled that courts will refuse to enforce any contract, as against public policy, which is intended to promote the dissolution of the marriage status. Gfreen-hood on Public Policy, 490-491. When that status is created the rights involved are not merely private, but they are also of public concern. The social system and welfare of the State having their foundation in the family, the State is an interested party, and therefore the marriage relations cannot be dissolved except through the sovereign power. It is true, either the hus-4 band, or wife, or both, may violate the terms and obligations of the contract; but neither one, nor both combined, can rescind or modify it except as provided by the laws'of the land.. This subject was discussed in Hilton v. Roylance, 25 Utah 129, 139, 69 Pac. 660, 58 L. R. A. 723, and it was there said: “Marriage, strictly speaking, is not a mere civil contract, but a status created by contract. 1 Bish. Mar. & Div., sec. 34. It is true, it is founded in consent of the parties, but the consent is the contract because of which the status is created. Marriage differs from ordinary contracts, in that it can only exist where one man and one woman are legally united for life, whereas ordinary civil contracts may exist between two or more of either or both sexes for any stipulated time. So the marriage relation differs from other contractual relations, in that, when the status is once created, the State becomes an interested" party, and thereafter the marriage, with the rights and duties assigned by the law of matrimony, is not subject, as to its continuance, dissolution, or effects, to the mere intention and pleasure of the contracting parties. The marriage, with its privileges, obligations, rights, and duties, which are or may be assigned by the law of matrimony for the establishment of families and the multiplication and education of human hind, continues during the life of the parties, and no dissolution of the status can be effected simply by the mutual consent or agreement of the parties. It is regulated and controlled and can be dissolved only through the sovereign power of the State whenever justice to either or both parties or the welfare of the public demands it.” Norton v. Tufts, 19 Utah 470, 57 Pac. 409.

Moreover, where, as appears in this instance, the parties agree that the one shall bring a suit to dissolve the marriage, and that the other will make no defense, or a mere nominal defense, which is indicated by the context, the agreement becomes collusive and fraudulent, and is without validity.- A contract of this character may be regarded not only as conceived in fraud, but as. a fraud upon the court, and it comes within the reason of the maxim, “ex turpi causa non oritur actio.” Mutual agreement of a male and female who are of the requisite age and capacity may create the marriage relation, but it can never dissolve it. The State being founded upon the family, so high is the marriage status regarded by mankind, so necessary is its permanency to promote the public welfare and private morals, that the State, to every marriage contract entered into within its jurisdiction, makes itself a party, in the sense that it will not permit its rescission or dissolution except for a cause provided by law, the existence of which is to be ascertained by a court of competent jurisdiction, upon evidence regularly submitted, in á proper proceeding instituted in good faith for that purpose. The parties cannot even consent to a decree in open court, nor stipulate as to Ihe facts. The decree must be based on absolute proof. The ■welfare of humanity, the intelligence and progress of the human race, high moral and social ethics, alike demand this. Any other method or device by which the "contracting parties attempt to sever or to facilitate the severing of the bonds of matrimony, in the eye of the law, contravenes public policy, is regarded as contra bonos mores, and is void and ineffectual. Therefore a contract which is designed to facilitate the procurement of a divorce, to put an end to the marriage status, and absolve the parties from all their marital obligations, imposed upon them by the law of matrimony, cannot be enforced. “As the policy of the law is to preserve intact the marriage, if possible, all requirements which have for their object or which contemplate a future separation between husband and wife are universally held illegal. ’ ’ 15 Am. and Eng. Ency. of Law (2 Ed.), 955. In 1 Bish. on Mar., Div. and Sep., sec. 1261, the author says: “Since the law makes the public a party to every suit for dissolution or separation, and forbids either form of divorce on the mutual agreement of the parties, or on the connivance of one of them to the other’s wrong, any bargaining between them for a future separation or for the procuring of a divorce, or tending to the like end, being contrary to the law and legal policy, is void.” In Seeley’s Appeal, 56 Conn. 202, 14 Atl. 291, it was said: “The law requires husband and wife, in their relation to each other, to perform certain duties and refrain from committing certain wrongs. Taking note of human infirmity, and of certain failure of some to do as it requires, or to refrain from doing what it forbids, it makes possible a method of release from the marriage contract upon proof that its purpose must entirely fail of accomplishment. Every decree of divorce must rest upon proof of such facts as have been by the Legislature declared to be sufficient to uphold-it; not at all upon considerations as to rights of property; not at all upon the wishes or agreements of the parties. Courts will not enforce any contract which is the price of consent by one party to the marriage relation to the procurement o'f a divorce by tbe other. The court is entitled to know in every case whether the particular marriage tie in question is or is not of sufficient strength to bear the strain to which the law has subjected it.” So in Adams v. Adams, 25 Minn. 72, it was stated: “The authorities are uniform in holding that any contract between the parties having for its object the dissolution of the marriage contract, or facilitating that result, such as an agreement by the defendant, in a pending action for divorce, to withdraw his or her opposition and to make no defense, is void, as contra bonos mores.” Likewise, in Phillips v. Thorp, 10 Or. 494, it was said: “ So strict and careful are courts in the administration of this justice, out of regard for the public morals and the general welfare of society, that they will esteem it their duty to interfere upon their own motion whenever it appears the dissolution is sought to be effected by the connivance or collusion of the parties; and all contrivances or agreements having for their object the termination of the marriage contract, or designed to facilitate or procure it, will be declared illegal and void, as against public policy. ’ ’ And again in the same case: “An unlawful agreement, it is said, can convey no rights in any court to either party, and will not be enforced, in law or in equity, in favor of one against the other of two persons equally culpable.” In Muckenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345, it was observed: “The law favors marriage, and cannot, therefore, sanction contracts intended to promote its dissolution, by lending itself to their enforcement. We know of no case in the books in which such an appeal to any court to compel the fulfillment of such a contract, or to award damages for' its breach, has been successfully made.” 1 Bish. Mar., Div. and Sep., secs. 76, 1312; 2 Am. and Eng. Ency. Law (2 Ed.), 127; Foote v. Nickerson, 70 N. H. 496, 54 L. R. A. 554; Beard v. Beard, 65 Cal. 354, 4 Pac. 229; Wilde v. Wilde, 37 Neb. 891, 56 N. W. 724; Loveren v. Loveren, 106 Cal. 509, 39 Pac. ; Hamilton v. Hamilton, 89 Ill. 349; Sayles v. Sayles, 21 N. H. 312, 53 Am. Dec. 208; Stoutenburg v. Lybrand, 13 Ohio St. 228; Baum v. Baum (Wis.), 85 N. W. 122, 53 L. R. A. 650, 83 Am. St. Rep. 854; Collins v. Collins (N. C.), 93 Am. Dec. 606; Blank v. Nohl, 112 Mo. 159, 20 S. W. 477, 18 L. R. A. 350; Friedman v. Bierman, 43 Hun 387; Simpson v. Simpson, 4 Dana 140; Blank v. Nohl (Mo.), 19 S. W. 65; Belden v. Munger (Minn.), 80 Am. Dec. 407; McKennan v. Phillips (Pa.), 37 Am. Dec. 438.

It will thns he seen that, viewed and tested by the foregoing principles, the contract in controversy clearly contravenes the policy of the law and is void. Nor 5 does it appear that the consummation of the transaction was the result of fair dealing. The conduct of the husband toward his wife'was not-such as to stamp it with fairness and justness. That the execution of the instrument by the wife was obtained through unfair advantage and unwarranted coercion on the part of the husband is a conclusion irresistible from an examination of the evidence. His consent and furnishing of the means for his wife to visit her parents; his selling out their property without her knowledge or assent, and leaving the State with the property in cash, while, she was absent; his instructions to his- attorneys h> conceal his whereabouts; his keeping his wife in ignorance of the value of and amount obtained for the property; his threat that he would never return to the State while the one whom he had promised to love, protect, and support was in it; his grossly unequal division of the property, which, with the assistance of her father, they, had accumulated during their married life — all these things, considered with the fact that his own intemperate habits, and consequent neglect of the duties he owed his wife, had brought on the estrangement then existing between them, savor much of the fraudulent, and militate strongly against the fairness and justice of the transaction which culminated in the contract. Not only the law, but a man’s most sacred honor, as well as every principle of justice and equity, demands that he tregt Ms wife at all times, and under all circumstances, respectfully, fairly, openly. Surely nothing less was due her. In that trying hour, when the cloud of disappoint-' ment and adversity was hanging over her, when she was to attach her signature to an instrument calculated to sever an alliance which had been made for life, she had a right to see her husband and talk with him face to face, and he had no right to conceal himself or anything relating to their affairs from her.

The record in this case is such as impels one to the thought that this is one of the sad, unfortunate cases where liquor, that prince of evil, blasted happy hearts and destroyed a happy home. ■

We are of the opinion that the appellant is not 5 barred of her right of inheritance.

Having taken the view that the contract is without validity, it is unimportant to discuss the other points presented.

The judgment must be reversed, with costs, and the cause remanded to the court below, with directions to set aside the present findings of fact and the decree, and enter findings of fact and a decree in accordance herewith, in favor of the appellant. It is so ordered.

BASKIN, C. J., and McCARTY, J., concur.