Giddings v. Giddings , 167 Or. 504 ( 1941 )

Argued on rehearing November 9; former opinion adhered to November 25, 1941 ON REHEARING (119 P.2d 280) A rehearing of this case afforded an opportunity to hear the question argued whether the agreement is collusive upon which plaintiffs seek to recover. In and of itself alone it is not. There is no stipulation or agreement expressly stated in it that Calvin M. Giddings, party of the first part therein, may secure a divorce from Harriet Giddings, party of the second part therein, and that such party of the second part will not oppose the procurement of such a divorce. Neither does it appear in that written agreement that Calvin M. Giddings could not procure a divorce if Harriet Giddings should contest his suit therefor.

To the writer, those facts, although omitted from the written document, are indisputably shown by plaintiffs' testimony and by the testimony elicited by plaintiffs on cross-examination of defendant, Minnie A. Giddings, over the objection of defendants.

There is no presumption that a contract for the settlement of property rights, made in contemplation of a possible divorce, is necessarily collusive; but in each particular case the court should look to all the facts and circumstances to determine whether the contract has that effect. Annotation, Subject, Collusion as Bar to Divorce, 109 A.L.R. 832, 844, and authorities there cited.

It is with regret that it becomes necessary to outline the facts and circumstances of this case, bearing on the collusive nature of the transaction involved herein, for the reason that an innocent minor is one of the interested parties.

As the writer understands the record, those facts are as follows:

When Minnie A. Giddings was a mere child, her father gave her to Calvin M. Giddings to educate and care for as his own daughter. That his interest in her developed a lover's infatuation is shown by the following facts: Sometime about 1916, 1917 or 1918, while Minnie and her sister were operating a rooming house in Portland owned by him and while his home was in Albany, he had a room reserved for his use and occupancy in the Portland rooming house; and spent most of the time at that rooming house while Minnie was there. In 1918 or 1919, while Minnie was engaged in picking oranges at Riverside, California, Calvin M. Giddings went there and remained for approximately six months. During the year 1918, he paid Minnie's room rent while she was at a rooming house where he was also stopping. While Minnie and he were in California, he talked marriage to Minnie and told her that he had left his wife and was getting a divorce or had procured one.

They were together some months in San Antonio, Texas, also in Canada, and probably at Vancouver, Washington.

The record discloses that while during those times, Calvin M. Giddings' first wife Harriet Giddings was an invalid, she gave no cause for divorce. On the other hand, she was a cultured, Christian woman commanding the respect of those who knew her.

Two of the plaintiffs testify that their father, Calvin M. Giddings, came to them and implored them to intercede with their mother to gain her consent to a divorce. He then stated that he could not get a divorce unless she agreed to it. These two sons, who are plaintiffs herein, told their father in effect that it would be difficult to induce their mother to give her consent. The record is plain and undisputed that Calvin M. Giddings said he was in a "tight spot" and he would have to have a divorce. That was one reason upon which these two plaintiffs based their plea to their mother. After both of these plaintiffs asked their mother to consent to a divorce, the mother finally consented. Before that consent had been obtained by her sons, it cannot be maintained that the written agreement upon which plaintiffs seek to recover could have been procured. The foregoing is a thumb-nail sketch of the events leading up to the execution on July 9, 1920, by Harriet Giddings and Calvin M. Giddings of the agreement in suit. In a minor particular, that agreement was modified on July 20, 1920. Seven days thereafter on July 27, 1920, the defendant therein, Harriet Giddings, not appearing, but being in default, a decree of divorce was rendered without any reference therein to the original agreement on July 9, 1920, or its subsequent modification.

The sons said that their father did not explain the nature of the dilemma which he characterized as a "tight spot". To the writer, no explanation was necessary. "Actions speak louder than words."

Thus we have a conscientious, Christian wife, induced by two of the plaintiffs to make a collusive agreement to relieve her husband, their father, of the result of his flagrant misconduct; and the agreement in suit is one of a series of steps taken by Calvin M. Giddings to that end. That writing, but partly evidences the actual transaction which, to be understood in its entirety, requires a consideration of the foregoing facts.

"The form of the contract is immaterial. The law will not countenance any device, no matter how devious, calculated to dissolve the marriage. And so a contract which tends to open the door to a collusive divorce is void even though there may be no express promise by a spouse not to resist suit. Even though legal grounds for divorce may exist, a promise not to interpose a defense in divorce proceedings will invalidate the entire agreement. So, too, will a promise to abandon a defense in a pending divorce suit. Where the corrupt understanding as to divorce is part of a property settlement, the settlement will be held void.

"A promissory note executed in consideration of a promise to facilitate divorce is unenforcible; * * * The rule as to unenforcibility applies not only to a note but to all collateral writings that are made in pursuance of the collusive divorce scheme." Lindey, Separation Agreements Ante-Nuptial Contracts and Marriage Settlements, pp. 381, 383, Section 23, citing in note 17 to the point of the invalidity of a property settlement: Beard v. Beard, 65 Cal. 354, 4 P. 229; Appeal of Seeley, 56 Conn. 202, 14 A. 291;Ehlers v. Ehlers, 259 Ill. App. 142; Fredricks v. Sault,19 Ind. App. 604, 49 N.E. 909; Taylor v. Ashe, 284 Mass. 182,187 N.E. 548; Gurley v. Gorman, 137 Miss. 210, 102 So. 65; Palmerv. Palmer, 26 Utah 31, 72 P. 3, 61 L.R.A. 641, 99 Am. St. Rep. 820; and also citing in note 20, Stokes v. Anderson,118 Ind. 533, 21 N.E. 331, 4 L.R.A. 313.

Plaintiffs' counsel argued on rehearing that the record was silent with respect to what would have prevented Calvin M. Giddings from procuring a divorce from his wife Harriet. The writer does not concur in that view; but mentions it in order to disclose that close attention was given to counsel's argument which was to the effect that the obstacle to such a divorce may have been merely a course of conduct which the wife could have waived; and hence, her consent to the divorce is not shown to be collusive. In this, counsel fails to distinguish between on the one hand, the making of an agreement consenting to a divorce and thereby facilitating it; and on the other hand, merely not choosing to make, and not making any defense.

"No harm will come to the plaintiff or the public simply from the defendant's not choosing to make and not making a defense. But a bargaining that there shall be none is not permissible. And no promise founded on such an undertaking can be enforced." Vol. 2, Bishop on Marriage, Divorce and Separation 288, sec. 700, note 2, citing Kilborn v. Field, 78 Pa. 194; Stoutenburg v. Lybrand,13 Ohio St. 228; Belden v. Munder, 5 Minn. 211, 80 Am. Dec. 407; Viser v. Bertrand, 14 Ark. 267.

"An agreement not to defend or to withhold evidence detrimental to complainant's case is collusion." 27 C.J.S. Subject: Divorce, 622, § 65.

This suit was instituted to impress a trust pursuant to the provisions in the contract of July 9, 1920, to the effect that at the death of the contracting parties the "principal and original property, if any, shall go to the children of the party of the first part and the party of the second part, they being the children of the two."

It cannot be said that this provision was not in part, at least, supported by the agreement by the wife consenting to a divorce by the husband. In other words, it seems to the writer that as a part consideration for being permitted to procure a divorce the husband agreed to restrict the final disposition of the property mentioned to the children of his first wife and himself to the exclusion of a child or children, if any, yet to be born to him and his second wife. It is this effect upon a child of the second marriage which the present suit seeks to enforce. For this reason, in the opinion of the writer, such cases as Edleson v. Edleson, 179 Ky. 300, 200 S.W. 625, 2 A.L.R. 689, are not in point.

The writer is impressed with the following excerpt from an early opinion of the North Carolina Equity Court:

"The relation of husband and wife is at the foundation of society. It is natural, as well as conventional. It was the relation of the first pair of our race, and has existed ever since. It is universal in civilization, and not uncommon in barbarism. It is indispensable to that other important relation of parents and children. Incident to it are its inseparable and indissoluble characteristics, — its oneness, — `they shall be no longer twain but one flesh,' `to live together after God's holy ordinance,' `so long as they both shall live.' But little legislation is necessary to define and regulate it. We know it by intuition. It is induced by the strongest passion of the human soul, — love. It is the most endeared relation which nature makes or society forms. When lusts entice, or wealth prompts the relation, it may prove a curse where one is satiated and the other wasted; but when love, virtuous and disinterested, ardent and mutual, prompts the relation, it is incomparable. Such is the relation as it exists with us. It is formed in perfect freedom. There are no constraints of parents, of custom, or of laws; nor any influences but such as are conducive to its happiness. It is formed in perfect simplicity, and preserved in religious purity. The husband is the stronger, and rules as of right; the wife is the weaker, and submits in gentleness. The frailties of each are excused or forgiven; their sentiments are in unison; their manners in conformity; their interests the same; their joys and sorrows mutual; their children are a common bond and a common care; and they live, not separately, but together, — the nursery of morality and piety, and the bulwarks of society.

How different from this is marriage, quarrel, separation, — the anomalous condition of a husband without a wife, a wife without a husband, parents without children, and children without parents. Such relations too surely follow deeds of separation. Let it be understood that marriage is only an experiment, to be formed inconsiderately, and broken capriciously; to be put on and off like a garment; that husband and wife may have separate establishments, in which to nurse their hate and cover their irregularities; that children may be trained to hate one parent or both, and to have the care of neither; and society to have constantly in view the nuisance of their infidelities; — and what greater evil can be imagined?" Collins v. Collins, 62 N.C. 153, 1 Phillips, North Carolina Equity Report, 153, 93 Am. Dec. 606.

Not waiting until six months had elapsed after the decree of divorce had been rendered, but exactly two months thereafter, Calvin M. Giddings went through a ceremony of marriage with his ward whom he was to educate and care for as a daughter. This ceremony took place in California. Ever since that ceremony until Calvin M. Giddings died, he and Minnie lived together as husband and wife.

On October 13, 1927, more than seven years after the marital ceremony above mentioned, Calvin M. Giddings and Minnie were married. On April 12, 1928, a daughter was born to them.

The facts being as above stated, the writer is unable to come to any other conclusion than that the instrument in suit was collusive, not by its terms, but by the circumstances attendant upon its execution and the agreement of which it was only a part actually made between the parties which, as stated, was partly oral and partly written.

In the case of Gurley v. Gorman, supra, the widow, Mrs. Pearl Gorman, sought to renounce the will of her deceased husband John Gorman, and to take her legal share of the estate. The heirs at law contested her right to renounce the will on the ground that the deceased, while living, had fully settled with his wife for her share in the estate. Mrs. Gorman had signed a release to all of her interest in the estate for the consideration of $330 before the death of her husband.

We quote from the opinion:

"This settlement, as evidenced by the written release appears from the record to have come about in this way: James Gorman and his wife had not been living in harmony, and they went together to the office of a lawyer and there discussed the differences between themselves and a settlement thereof. At this conference, which was attended only by Mr. Gorman, his wife, and a lawyer, it was agreed that Mr. Gorman should pay his wife $330 in settlement of any claim that she might have against his estate, and that Mrs. Gorman would file a bill for divorce, and Mr. Gorman agreed that he would not contest the divorce suit. After the money was paid over to her and the written release signed by her, the lawyer proceeded to prepare and file the bill for divorce, and the parties then left the office. Afterwards, it seems the bill was dismissed and a new suit for alimony instituted by the wife, whereupon Mr. Gorman answered with a cross-bill, seeking a divorce from her and pleading his release for the sum of $330. No divorce was granted.

We think the subsequent events regarding the separation and divorce proceedings between Mr. and Mrs. Gorman are immaterial for the purpose of deciding the question presented to us on this appeal, and therefore we shall not state these proceedings or the outcome thereof.

After hearing all the testimony, the chancellor decided that the release was invalid, for the reason that the settlement and release was the result of a collusive agreement between the husband and wife for the purpose of promoting or facilitating the procurement of a divorce, which collusion was contrary to public policy and vitiated the settlement. * * *

We have considered the evidence in the record showing that the settlement and release was induced by, and was a part of, the collusive agreement to secure the divorce, and we think it was sufficient to support the finding of fact by the chancellor that the settlement was the direct result of the collusion between the parties.

The rule seems to be well established in all other jurisdictions, and we approve and adopt it, that collusion between husband and wife to obtain a divorce is illegal and contrary to public policy, and that any contract or agreement made by virtue of or in connection with such collusive agreement is unenforceable in the courts, and cannot be set up as a binding contract." In the case of Gurley v. Gorman, supra, 9 R.C.L. pt. 13, p. 254, and Palmer v. Palmer, supra, are cited.

Reference to the citation to R.C.L., just mentioned, discloses a citation to the case of Blank v. Nohl, 112 Mo. 159,20 S.W. 477, 479, 18 L.R.A. 350.

We quote from the opinion in Blank v. Nohl, supra:

"Back of the question whether the contract can be valued so as to allow the plaintiff a sum in gross in full discharge of it, is the more important one, whether the agreement can be enforced at all, so far as it remains unexecuted. In other words, the question is whether the agreement violates a sound public policy. Marriage is more than a mere civil contract. It is a matter of state concern; and, when the marital relation is once created, it cannot be dissolved by any agreement of the parties. It can be dissolved, and dissolved only, in the manner and for the causes allowed by law. Courts sitting in divorce cases are bound to protect the public interests as well as the rights of the parties themselves; and hence it is that, 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; and this, too, though there is a default on the part of the other party. For like reasons, the law is well settled that an agreement having for its object and consideration the granting of a divorce is illegal and void. Says Bishop: `But the law does not favor divorce and permits it only in approved cases, and on sentence from duly-established authority. Therefore any agreement for divorce, or any collateral bargain promotive of it, is unlawful and void.' 2 Bish. Mar. Div. § 696, (Ed. 1881.) The defendant in a divorce suit is not bound to make a defense, and mutual assistance in proving the actual facts does not amount to collusion. Stew. Mar. Div. §§ 302, 303. But a bargain that there shall be no defense is collusion, and any promise founded on such an undertaking cannot be enforced. 2 Bish. Mar. Div. § 239, (6th Ed.) The case of Barnes v. Barnes, 1 L.R. Prob. Div. 505, furnishes an illustration of what are and what are not collusive contracts. It is there said, in substance, that the mere fact that the husband gave the wife money for her support, both before and after he instituted the divorce suit, did not prove collusion; but furnishing the support in consideration that the wife would keep quiet, so that he could get a decree cheaper than he otherwise would get it, was collusion. Says Bishop: `It makes no difference how just the cause may be, if the parties collude in the management of the case before the court, this is collusion. It is also collusion where material facts are suppressed, though they would not have changed the result.' 2 Bish. Mar. Div. § 28, (6th Ed.). The authorities are numerous to the effect that any agreement that the defendant in a divorce suit will not make a defense, or having for its object the dissolution of a marriage contract, or designed to promote and facilitate a divorce, is void, because opposed to the policy of the law; and any promise founded on such an agreement is also void, and should not be enforced. Sayles v. Sayles, 21 N.H. 319; Cross v. Cross, 58 N.H. 373; Viser v. Bertrand, 14 Ark. 267; Stoutenburg v. Lybrand, 13 Ohio St. 228; Kilborn v. Field, 78 Pa. St. 194; Adams v. Adams, 25 Minn. 72; Muckenburg v. Holler, 29 Ind. 139; Phillips v. Thorp, 10 Or. 494. "

At the conclusion of the oral argument, upon rehearing, counsel for plaintiffs asked that consideration be given to some authorities cited in his closing argument at the original hearing. Although in point on another phase of this case, these authorities have no bearing upon the determinative question here discussed.

That question is, whether, under the facts and circumstances attendant upon its execution, the contract of July 9, 1920, as modified on July 20, 1920, has a collusive effect.

The writer thinks that the original agreement and its modification were part of the collusive agreement induced by two of the plaintiffs at the behest of their father and hence invalid and unenforcible.

Such an agreement, in the opinion of the writer, is not enforcible whether the one seeking its enforcement had anything to do with its execution or not. The reason reference is made herein to the fact that two of the plaintiffs were active in procuring their mother's consent to the collusive agreement, is that it may be made clear that plaintiffs themselves developed the unenforcible character of the instrument in suit. That phase of the case was not called to the attention of the court by defendants.

The writer is not unaware that a distinction is observed at times between collusion and connivance, the former being termed a corrupt agreement while connivance is said to be a corrupt consenting. In either case, whether of connivance or collusion, the court will not lend its aid to the enforcement of a contract which is void because it is against public policy.

We adhere to the former opinion.