176 Mo. App. 69 | Mo. Ct. App. | 1914
This is a suit for divorce brought here on the appeal of defendant from a judgment overruling her motion to set aside a decree recovered by plaintiff September 16, 1912. The ground of the motion is that the decree which was rendered by default was the result of collusion between plaintiff and the attorneys of defendant by which defendant was prevented from defending the suit and from prosecuting her cross-bill for divorce.
The parties were married in August, 1906, and lived together as husband and wife at Ashland, Boone county, until August, 1911, when they separated on account of intolerable indignities plaintiff alleges were inflicted upon him by his wife. At the time of the marriage plaintiff was a widower with two children and possessed of property worth approximately $30,-000, and defendant was a widow with five children. She owned a life estate in land left by her former hus
Defendant contends that it was her purpose, known to her attorneys, to defend the suit and prose1 cute her cross-action and that her failure to appear in court on the trial day was caused by her attorneys who kept her in ignorance of the fact that her case had been set for trial. This- is denied by the attorneys who state that defendant was informed by them of the setting of the case and expressed her purpose not to appear at the trial or further to contest her husband’s suit.
By the terms of the contract of employment made by plaintiff with her attorneys they were to have for their fee “one-fourth of all money or real estate that may come to the party of the first part (defendant) by reason of the settlement of her marital rights in the property of her said husband, Robert Hudson, either by compromise or otherwise.” And on their part they agreed not to make “any settlement either by compromise or otherwise,” without the consent of plaintiff and further agreed “to defend the said divorce case without any cost whatever to the first party otherwise than hereinbefore provided.” •
The evidence shows, quite clearly that plaintiff and defendant were hopelessly estranged and that each was desirous of a legal separation. Defendant was on the point of bringing a suit for divorce and alimony when
Defendant protested that she was not receiving as much money from her husband as she was entitled to and reluctantly gave her approval to the settlement, moved thereto, we think, by the fear that she might fare worse if she allowed the case to go to trial without an adjustment of the property issues. The subject of the divorce was not mentioned in the contract and de
Nor do we find good ground for the conclusion urged by defendant that the settlement contract should be regarded as evidence—conclusive evidence of a collusive agreement that plaintiff should not be resisted in his attempt to procure a divorce. A defendant in a divorce suit is not bound to make a defense (Blank v. Nohl, 112 Mo. 159, and authorities cited) and no inference off collusion should be drawn from the mere fact of nonresistance, though such fact may be regarded as an important element in circumstantial evidence from which such an inference would be permissible. A compromise and settlement of the pecuniary and property issues in a divorce suit is not denounced by law as immoral or against public policy “but a bargain that there shall be no defense is collusion and any promise
'We find as did tbe trial court that the attorneys of the respective parties carefully and in good faith excluded the issues about which no agreement might lawfully he made from those included in the settlement and that there was no understanding, express or implied, that the suit would not he vigorously defended. The court properly overruled the motion to set aside the decree.
Affirmed.