Grush v. Grush , 90 Mont. 381 ( 1931 )

The question involved in this case is purely jurisdictional. It arises under section 5771 of the Revised Codes of 1921, and involves the question heretofore decided by this court showing lack of power of the court nisi to grant a plaintiff in a divorce action a divorce on the ground of the misconduct of the defendant in the default judgment, and at the same time mulct the plaintiff for alimony to be paid to the guilty spouse. (Albrecht v. Albrecht, 83 Mont. 37, 269 P. 158; Damm v.Damm, 82 Mont. 239, 266 P. 410; Bischoff v. Bischoff,70 Mont. 503, 226 P. 508; Lampson v. Lampson, 171 Cal. 332,153 P. 238.)

The contract between plaintiff and defendant shown in evidence over proper objection seems to be not involved in this case. Even if it were involved originally, it could not confer jurisdiction in this proceeding. (Hughes v. Hughes, 68 Cal. App. 195,228 P. 675.)

It may readily be conceded that where the court has ample power, a consent decree is as valid as any other. But the consent must be a legal, a possible one. An alleged consent to do an impossible thing is no consent at all. And in this case, insomuch as the court was without power to decree alimony, the consent of the parties even could not and did not vest it with such power. The legislature may confer the requisite authority — the parties may not. This court more than once has said that "the court has no authority to require a husband to make provision for the support of his former wife, except when a divorce is granted for his offense." (Albrecht v. Albrecht, supra; see, also, 19 C.J. 244, 245; 3 C.J., sec. 546, p. 674; Ocobock v. Nixon,6 Idaho 552, 57 P. 309.) While it is true that this court has decided that the lower court has no authority to grant permanent alimony where a decree is granted to the husband for a wife's dereliction, and the cases cited by appellant so hold, the case at bar does not come within the rule laid down by those decisions, since an entirely different case or state of facts was before the court, and section 5771, Revised Codes of 1921, and law of the cases cited by appellant are not applicable, and the lower court so held.

The decree in this case was entered after the default of the respondent and the action thereupon became ex parte; it was appellant's decree and was presented, requested and consented to in its entirety by him. It was rendered upon appellant's motion and it so recites. The decree was to intents and purposes by the consent of the appellant. Since this is so, appellant cannot complain, as this court has decided that "a party will not be heard to complain of a judgment entered by his consent." (Corby v. Abbott, 28 Mont. 523, 73 P. 120;Forrester MacGinnis v. B. M. Co., 29 Mont. 397,74 P. 1088, 76 P. 211; see, also, 21 C.J., p. 812; Hall v. Hall,70 Mont. 460, 226 P. 469; Twitchell v. Risley, 56 Or. 226,107 P. 459; Erlanger v. Southern P. R. Co., 109 Cal. 395,42 P. 31.) Therefore, if the lower court was without jurisdiction to render the decree in question, it was waived by the appellant by his consent thereto, and he cannot take advantage of an error in which he concurred.

After the filing of the complaint the parties to the action entered into an agreement settling their property rights and making provisions for the support and maintenance of the defendant, which, by consent of the plaintiff, were incorporated in the decree of divorce. It is a well-established rule of courts to respect and adopt property settlements made between the parties in a divorce action and embody its provisions in the decree. (Lee v. Lee, 55 Mont. 426, 178 P. 173; Sherman v.Sherman, 65 Mont. 227, 211 P. 321; Hogarty v. Hogarty,188 Cal. 625, 206 P. 79; Brice v. Brice, 50 Mont. 388,147 P. 164.)

This court is without jurisdiction to annul the order of the lower court, and to strike from the decree the portion sought to be stricken therefrom by the appellant on this appeal. The only method by which the alleged error in the judgment could be corrected was on appeal from the judgment; as that appeal was not taken within time, the attempted appeal from the order refusing to strike objectionable matter from the decree and denying appellant's motion, is ineffectual. (State ex rel. McHatton v.District Court, 55 Mont. 324, 176 P. 608; Merhar v.Powers, 73 Mont. 451, 236 P. 1076; Kline v. Murray,79 Mont. 530, 257 P. 465; Howell v. Howell, 104 Cal. 45, 43 Am. St. Rep. 70, 37 P. 770; Morgan v. Williams, 77 Wash. 343,137 P. 476; Stewart on Marriage and Divorce, secs. 366, 376.)

The plaintiff has mistaken his remedy. The power to vacate a judgment on motion is confined to cases in which ground alleged is something extraneous to the action of the court, or goes only to the regularity of the proceedings. (1 Black on Judgments, 2d ed., sec. 239; Jones v. Babcock, 116 Wash. 424, 199 P. 734;Cresta v. Ocean Shore R. Co., 56 Cal. App. 687,206 P. 460.) On March 1, 1930, plaintiff was awarded a decree of divorce from the defendant on the ground that she had wilfully deserted him. The decree was rendered by default after defendant's demurrer to the complaint was overruled and she had declined to plead further. The decree required plaintiff to pay the defendant $50 per month alimony for support and maintenance for a period of eight months, and thereafter $75 per month until the further order of the court.

On August 16, 1930, plaintiff filed a motion to annul that part of the decree requiring the payment of alimony, upon the ground that it was null and void as being in excess of the authority and power of the court. No claim was made that the decree should be modified because of any change in the circumstances of the parties, and no effort is made on equitable grounds to set aside the decree in its entirety. Thereafter defendant filed a motion to amend the decree by inserting in it a copy of an agreement made between plaintiff and defendant on February 25, 1930, and while the divorce action was pending, in which it was stipulated that plaintiff would pay to defendant $50 per month alimony for eight months and $75 per month thereafter until discontinued by order of a court of competent jurisdiction. The two motions were heard together. Plaintiff's motion was thereafter denied, and this appeal is from the order denying the motion.

The question presented for consideration is whether the provision in the decree awarding alimony can be sustained.

Where, as here, an absolute divorce is granted terminating the[1, 2] matrimonial ties, the duty of support no longer exists at common law, and while there is authority to the contrary (Pryor v. Pryor, 88 Ark. 302, 129 Am. St. Rep. 102, 114 S.W. 700), the better view is that the right of the court to make an award of permanent alimony does not exist in the absence of express statutory authority (1 R.C.L. 877, note 5). In this state, where a divorce is granted for an offense of the husband, the court may compel him to make suitable allowance to the wife for her support during her life. (Sec. 5771, Rev. Codes 1921.) But where the divorce is granted for an offense of the wife, the court is without authority to make an award to her of permanent alimony. (Albrecht v. Albrecht, 83 Mont. 37, 269 P. 158;Damm v. Damm, 82 Mont. 239, 266 P. 410; Bischoff v.Bischoff, 70 Mont. 503, 226 P. 508.) An attempted award under such circumstances is without jurisdiction and void, subject to direct or collateral attack at any time and is unaffected by the consent of the parties. (Andrews v. Whitney, 21 Hawaii, 264;Cizek v. Cizek, 69 Neb. 797, 5 Ann. Cas. 464, 96 N.W. 657;Prosser v. Prosser, (R.I.) 150 A. 754.) Had the divorce decree in this action been based upon defendant's wilful desertion in fact, the order of the district court denying plaintiff's motion would be erroneous.

While the judgment carries the necessary implication that the issue as to who was the offender was tried upon the hearing from which the decree resulted, the record as now presented tends to show that that essential fact was not litigated on its merits, due to plaintiff's agreement that the decree make provision for the payment of alimony, the consequences of which he is now seeking to evade. Defendant's motion was supported by her affidavit in which she stated that, while in the complaint in the divorce action it was alleged that she had deserted her husband, she in truth and in fact had not done so. The affidavit recites that she and her husband continued to live and cohabit together until the divorce action was commenced on February 10, 1930, and thereafter until on or about March 1, 1930; and that during all of this time she yielded him his conjugal rights, though at times to do so was painful and disagreeable because she was in the midst of her menopause; that her husband had developed the habit of drinking to excess and was reputed as consorting with other women, and for that reason the continuance of the marriage relation was intolerable; that she agreed that plaintiff should proceed with the divorce action on condition that the provisions of the agreement as to permanent alimony should be incorporated in the decree; and that in reliance upon his agreement to pay alimony she failed to oppose the divorce action. At the hearing she testified to the facts stated in her affidavit and was corroborated in some particulars by her brother, Sidney Ward. The evidence introduced as to who was the offender is in conflict, but defendant's statement that she failed to oppose the divorce action in reliance upon the agreement is not disputed.

While the decree of divorce on its face is based upon the wilful desertion of the wife, it is doubtful whether it would[3, 4] have been so had the defendant resisted the action. The evidence of the defendant shows an agreement between the two that plaintiff should prosecute his action and that she would not defend in consideration that plaintiff's promise to pay alimony should be incorporated in the decree, and tends to conceal what might have been found to be the true cause of the divorce. Such an agreement savors of collusion and is opposed to public policy (13 C.J. 463, 464, note 78) and a fraud upon the court (Id. 447), and the court if satisfied that the decree was based upon such an agreement, might sua sponte have set it aside (Hall v.Hall, 70 Mont. 460, 226 P. 469; State ex rel. Sparrenberger v. District Court, 66 Mont. 496, 33 A.L.R. 464, 214 P. 85). The effect of sustaining plaintiff's motion would be to permit him to obtain the divorce by keeping defendant away from court by what would then be false promises reduced to writing to pay alimony to her and to incorporate such provision in the decree, and would thus amount to extrinsic fraud. (15 R.C.L. 763; Clark v. Clark, 64 Mont. 386, 210 P. 93.) For the court to grant plaintiff the relief sought might serve to assist plaintiff in perpetrating a fraud upon defendant and thus the court become an instrument of injustice. Under the circumstances under which the decree was obtained, it would be unjust to annul that part of the decree awarding alimony and permit the remainder to stand. Since it would appear from the evidence that a dissolution of the marriage relation would likely follow if the defendant resisted the action, the only issue being, if she asserted her defense therein, as to who was the offending party, there seems no good reason, so far as public policy is concerned, why the decree annulling the marriage should not stand. Neither party is seeking to set it aside in so far as it grants the divorce.

The plaintiff having accepted the benefit of the decree,[5] entered on his motion and with his consent, in so far as it awards the divorce, he should not be permitted to be relieved from its burdens, agreed to by him (Parker v. Parker, 55 Cal. App. 458,203 P. 420; In re Mesmer's Estate, 94 Cal. App. 97,270 P. 732) in consideration that the decree run to him on the ground of defendant's wilful desertion — an issue which might have been decided otherwise were it not for the agreement in reliance upon which she failed to oppose the divorce action. The court properly left the parties where they had voluntarily placed themselves by their agreement.

While the order of the district court does not appear to be[6] based upon this ground, if the correct conclusion was reached it is immaterial what reasons were assigned. (Whitcomb v. Beyerlein, 84 Mont. 470, 276 P. 430.)

The order appealed from is affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur.