79 A.D. 291 | N.Y. App. Div. | 1903
This action is brought to recover past due installments of money adjudged to plaintiff in a decree of divorce obtained by the defendant in North Dakota for the support and maintenance of plaintiff and a minor child, and also promised in a written instrument executed by the husband in North Dakota on the day the decree of divorce was granted. . The facts on the trial of this action were agreed upon by counsel for the respective parties, and so far as the question which must be decisive of the rights of the plaintiff to a recovery is concerned are as follows: The plaintiff and defendant were married in the State of New York in 1878. They lived together in this State as husband and wife until June, 1895. On the last-mentioned date they separated and have not since lived together. In July, 1897, the defendant (husband) went to North Dakota to get a divorce. On October 1, 1897, the plaintiff commenced an action for divorce in this State on statutory grounds against the defendant. The defendant appeared in that action. On October 20, 1897, the defendant commenced an action against the plaintiff for a divorce in North Dakota on the ground of desertion,' and the plaintiff appeared generally by counsel therein. At some date between October twentieth and November sixth the defendant and plaintiff entered into a verbal agreement whereby plaintiff was to discontinue her action in the State of New York, and agreed “ that she was not to contest the action commenced in Dakota by the defendant; ” that defendant was to pay the plaintiff her costs, in the action brought by her and her costs in the North Dakota action, and also pay to this plaintiff seven dollars per week for support and maintenance of herself and a minor child, such payments to continue during the life of plaintiff, or until she should remarry; that defendant would thereafter execute and deliver to plaintiff a bond and agreement obligating himself to pay the sums specified for support; that should a judgment of divorce be obtained by defendant in the
In support of good morals public policy declares all agreements between husband and wife tending to facilitate a divorce to be void. “No harm will come to the plaintiff or the public simply from the defendant’s not choosing to make and not making a defence. But a bargaining that there shall be none is not permissible. And no ¡promise founded on such an undertaking can be enforced.” (2 Bish. Marr. Div. & Sep. § 700.) The authorities for this proposition are very numerous and are uniform in all the States. (Train v. Davidson, 20 App. Div. 577; Kilborn v. Field, 78 Penn. St. 194; Stoutenburg v. Lybrand, 13 Ohio St. 228; Belden v. Munger, 5 Minn. 211; Viser v. Bertrand, 14 Ark. 267; Weeks v. Hill, 38 N. H. 199, 204.)
But after a divorce has been granted by a court having jurisdiction of the parties to the action, the vicious agreements which led up to the divorce are not available in a collateral attack upon the judgment. They may be used perhaps in an application to set aside or modify such judgment in the jurisdiction where it is rendered. The parties having submitted themselves to the jurisdiction of the courts of a sister State, having also jurisdiction of the subject-matter, the judgment entered is conclusive there and is equally so in every other State.
In Kinnier v. Kinnier (45 N. Y. 535) the facts were that the parties resided in Massachusetts; the husband went to Chicago to .procure a divorce; the wife appeared in the action and put in an •answer; the answer not being replied to stood confessed. The parties, however, by collusion procured to be entered and docketed .a. formal decree of divorce by which the parties were declared
The contention of the appellant that the court of North Dakota had no power to insert in the decree a provision for the defendant’s support, the decree being based upon her misconduct, is fully answered, I think, first, by its being a part of a decree which in all other respects it is conceded the court had power to make, and no portion of the decree can be questioned collaterally. Second. This provision was inserted by the agreement of the parties. If it had not been inserted it may well be presumed that there would have been no decree at all. If this was done by collusion in order to obtain the decree then it was a fraud upon the court in which both
This provision of the decree not being in the nature of alimony, as authorized by section 2761 of the Oivil Code
I advise that the judgment be affirmed, with costs.
Judgment unanimously affirmed, with costs.
Revised Codes (Civ. Code of IT. D. § 73).—[ Rep.