Hubbard v. Hubbard , 19 Colo. 13 ( 1893 )

Chief Justice Hayt

delivered the opinion of the court.

It is apparent upon the face of the petition that plaintiff in error was in no way misled or deceived as to the nature of the original action. She was duly served with process of summons and a copy of the complaint, and had at her service able counsel to defend her interests.

Thus advised and prepared she entered into a secret, collusive agreement with defendant in error, and for a promised consideration aided him by her silence to impose upon the court and procure a divorce. After the entry of the decree thus obtained she remained silent for more than one year, and only upon failure to realize the consideration promised for her shameless bargain did she apply for relief.

She not only permitted the term at which the decree was rendered to pass, but also the six months additional allowed by statute for relief in certain instances, without advising the court of the fraud practiced upon it and the law. To entitle her to relief had her petition been filed in apt time, it should have been made to appear affirmatively that she was then acting from good motives and not any expected personal advantage.

It is apparent, however, from her petition that she entertains no feelings of remorse for her base conduct, but is on the contrary actuated solely by a desire to obtain a money consideration for the fraud to which she was a party. Plaintiff under these circumstances is not in a position to demand favorable action from the court.

It is urged that the divorce should be set aside on the ground of public morals. The manner in which the public morals would be subserved by such action is not apparent. With the marriage contract reinstated, plaintiff in error would occupy a more advantageous position from which to renew her demand for money, and perhaps, profiting by her experience, negotiate for another collusive divorce upon a cash-in-hand basis, but we must be permitted to question the benefit that would result to the public morals by opening anew such an avenue of speculation at the instance of a party to the fraud. Undoubtedly courts should exercise care in dissolving the marriage relation and decline to grant relief where collusion appears, hut after a decree has been rendered and acquiesced in for a long period of time, reasons which would in the first instance have caused it to be withheld may not he sufficient to warrant setting it aside. Zoellner v. Zoellner, 46 Mich. 511; Singer v. Singer, 41 Barbour, 139; Simons v. Simons, 47 Mich. 253.

Danforth v. Danforth, 105 Ills. 603, is the only case cited by counsel for plaintiff in error. The case is readily distinguishable from the case at bar. In that case collusion was charged between the husband and the attorneys for the wife, she herself neither being a party to nor having knowledge of the collusive agreement. And the motion to set aside the decree was interposed before the adjournment of the term and as soon as the facts came to her knowledge.

The judgment of the district court must be affirmed.

Affirmed.