Radle v. Radle , 204 Iowa 82 ( 1927 )

The defendant has shown no rights meriting the consideration of the court. He was properly represented by counsel. No fraud or mistake prejudicial to his rights is shown. He has not proceeded under Chapter 552, Code of 1924, nor has he made out any case under that chapter. He may be dismissed from further consideration.

The nominal plaintiff and defendant are not, however, the only parties to this suit. Generally speaking, they are not the more important parties. The state and (abstractly, if not concretely in this case,) the immature children are those most vitally interested in suits for divorce. The state and the public are parties by implication, and their rights are never lost by neglect or through the default, collusion, or fraud of the parties.

"The public, which we have seen to be a party in all divorce suits, occupies a unique position, sometimes embarrassing to the court. It does not ordinarily appear by counsel, and when without counsel, does not plead. As against this party, when only thus represented by what is called the conscience of the court, the plaintiff is entitled to the decree on his case, being duly and fully proved. But this party, unlike the others, never loses a right by laches; and so, whenever a defense comes out in the evidence, whether alleged or not, it is fatal to the proceeding. A maxim in these suits, therefore, is that a cause is never concluded as against the judge; and the court may, and to satisfy its conscience sometimes does, of its own motion, go into the investigation of facts not contested by pleadings." 2 Bishop on Marriage, Divorce and Separation, Section 663, quoted in Grant v.Grant, 84 N.J. Eq. 81 (92 A. 791).

See, also, Allen v. Allen, 73 Conn. 54, 55 (46 A. 242, 84 Am. St. 135, 49 L.R.A. 142); Decker v. Decker, 193 Ill. 285 (61 N.E. 1108, 86 Am. St. 325, 55 L.R.A. 697).

The family relationship is the steel framework of the state; and that it is being disastrously corroded by the liberal allowance of divorces and laxity of divorce laws and administration of them, is a matter of current comment and concession.

Divorces are entirely statutory. No person has a fundamental right to a divorce. Idem. For the protection of the state and the public morals, the legislature, in vesting the courts with authority to dissolve the marriage relation, has imposed, not merely upon the parties, but upon the courts, certain restrictions and conditions and limitations, within which only the court is authorized to exercise this statutory power. The petition must contain certain allegations, and these must be established by competent evidence. Sections 10470, 10471, Code of 1924. The hearings must be in open court, upon the oral testimony of witnesses, or depositions. Section 10472, Code of 1924. The parties are not permitted to agree upon the facts. Though they may be represented by counsel, not only of ability and reputation, but of character, the court may not accept the statements of the counsel. The power of arriving at a conclusion, of passing upon the quality and sufficiency of the evidence and the conclusions that may be derived from the evidence, is vested, not in the parties or in their counsel, but in the court. The court may not evade this responsibility and accept the word and opinions of counsel, however eminent they may be in ability or character. It is not for the court, in such a case, to pass upon the reliability of counsel. The parties are not always represented by such counsel. The law has not opened to the court the door of temptation by permitting him to accept the word of counsel whom he believes to be of good character, and evade responsibility by accepting the word of counsel whose integrity he may doubt.

While it does not lie with this defendant to say that the cause for divorce was not proved, and was not passed upon by the court, it does lie with the state and the public to say so, and the lower court was required, in the interest of the state, to determine the question presented to it. If it neglected its duty, that duty now devolves on this court, and cannot be evaded by an appeal to the presumption supporting a judgment in its operation between private individuals. The lower court knew that the language of the law had not been complied with. That fact was called to its attention. It does not matter how or by whom the fact is brought to the attention of the court. It may be by an entire stranger, as in Todhunter v. DeGraff, 164 Iowa 567. We do not have to consider here a case in which the decree has passed to a finality, and has been acquiesced in, and in which a disturbance of the decree would or might operate to the prejudice of the public, as well as the parties. Even as between parties, the intervention of the rights of innocent third parties is not controlling. Rush v. Rush, 46 Iowa 648. The application in this case was made during the term. The entry was still under the control and subject to the further action of the court. Section 10801, Code of 1924.

"Even without such a statute as we have quoted, the court has undoubted inherent power to correct its own records, during the term, and to set aside, modify, or expunge any order, decree, or judgment theretofore ordered at the same term, and the power exists until adjournment sine die." Todhunter v. DeGraff,164 Iowa 567, 575.

Most of the cases that have arisen, have been brought before the court on the application of a party to the suit who has been defrauded of his rights. The fraud committed is frequently both on the court and on the party. Here, the fraud is upon the law and its administration. The express command of the statute has been ignored. The court, instead of taking oral evidence or depositions, and considering and determining for himself whether the letters were obscene (obscenity is not ground for divorce), or whether they proved such inhuman treatment as to endanger the life of the plaintiff, took the statement of counsel, and, instead of passing his judgment, accepted their judgment. In effect, he shifted the responsibility, and this he ought not to have done. We have no right to tolerate such a disregard of the law and the rights and interests of the state and the children, if any. It does not matter that the defendant has not shown that the plaintiff had no right to a divorce, or that he has been prejudicially affected. It is shown, and it matters not by whom, that the plaintiff did not prove her right to divorce, and that the court took counsel's statement and counsel's conclusion, instead of taking competent evidence and passing his own judgment upon it. Under such circumstances, the divorce is a legal fraud upon the state and upon the law, and should be vacated. It matters not, at this stage of the case, whether the plaintiff may or may not be able to show that she is entitled to a divorce. She has not shown it. The court has not exercised his own judgment upon her right to it, nor does it matter that the defendant took no appeal from the judgment. The state, as represented by the judicial branch of the government, is not bound by defendant's failure to appeal, nor precluded by the laches or neglect of its officers. I think the judgment should be reversed, and the lower court ordered to vacate the judgment of divorce.