3 P.2d 402 | Mont. | 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,
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,
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,
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 *384
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,
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,
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,
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,
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. *386
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,
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 *387 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,
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,
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,
The order appealed from is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur. *389