Marks v. Marks

I concur, but I think it is possible for the parties to stipulate that money due before the application for reduction may be remitted even though the court may have no power, without agreement by the parties to remit amounts which before application have become liquidated by the terms of the decree. In this respect I rest my concurrence on the proposition that the stipulation was subject to approval by the court and, if modified by the court without protest in that regard by either party, must be considered as acquiesced in by both parties.

The principle laid down in Tribe v. Tribe, 59 Utah 112,202 P. 213, and followed in other cases celebrates a triumph of life over logic. As I recollect, in California, and certainly in Oregon and New York, the courts hold that a divorce absolute puts the parties on the same plane as any other litigants as far as suit money and counsel fees are concerned. It would appear that these jurisdictions sacrified logic to the exigencies of the situation. Says Mr. Justice Holmes on page 1 of his book, The Common Law:

"The life of the law has not been logic: it has been experience. The felt necessities of the time * * * have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

McDONOUGH, J., being disqualified, did not participate herein.