87 A. 729 | Conn. | 1913
The principal question is whether the contract sued on is, on its face, and without a showing that it was in fact intended or used for collusion or suppression of evidence, so contrary to the public policy of Connecticut that it cannot support the judgment.
It is everywhere agreed that contracts for the purpose of facilitating divorce are contrary to public policy, as where the agreement is to assist each other in obtaining the divorce; Palmer v. Palmer,
But there is a difference of opinion as to the validity of contracts made after divorce proceedings have been independently commenced or determined upon, and where the agreement is in fact an amicable arrangement as to the amount of alimony to be paid in the event of a divorce being granted. In some jurisdictions contracts of this general character are permitted, and even favored. Burnett v. Paine,
According to the law of South Dakota, the contract in suit appears to be valid. By that law husband and *380
wife may contract with each other respecting property, and they may agree in writing to an immediate separation. Code, §§ 98 and 99. In Burgess v. Burgess,
Such being the law of South Dakota, the contract was valid at the time and place it was made, and gave rise to an enforceable obligation. That being so, the obligation is enforceable here, unless its enforcement *381 would contravene some important public policy of the State or the canons of morality established by civilized society. Minor on Conflict of Laws, p. 9.
That the contract was not contrary to any universally accepted code of morals is evident from the difference of opinion above pointed out. In determining whether foreign created rights, valid at the place of their origin, will or will not be enforced in another jurisdiction when contrary to some domestic public policy of the forum, the courts are compelled, in the absence of statutory direction, to weigh the injustice of refusing the remedy against the importance of maintaining the domestic policy. "In deciding cases of this kind, therefore, each court has to pass upon the importance of the domestic policy maintained by its laws. They are generally loath to deny the enforcement of a proper foreign law, and will not, if they consider the domestic policy of minor importance. But where it is a fundamental and important policy of a State, established after careful consideration of the supposed needs and wants of its people, no foreign law will be permitted to supersede it." Minor on Conflict of Laws, p. 11. "Not every common-law or statutory rule prevailing at the forum involves a distinctive policy in the sense of the exception." 1 Wharton on Conflict of Laws (3d Ed.) § 4a;Medway v. Needham,
No unyielding principle can be invoked, but each case must be determined as a matter of comparative justice. In the present case the contract has been fully performed by the plaintiff; in reliance on the defendant's express agreement, valid where made, she has omitted to demand alimony from the court and has now lost her opportunity of doing so; there is no showing that *382 the contract was actually made for the purpose of collusion or suppression of evidence, and no claim that the decree is for any reason invalid; so that nothing remains unperformed except a financial obligation which the defendant seeks to evade. The public policy of Connecticut is not invoked to prevent the doing or continuance of any act forbidden by our law, but as a token of our disapproval of a past transaction in South Dakota between residents of that State which was unobjectionable under their law; a disapproval, moreover, founded on a general objection to the making of such contracts and not upon any special objection to this particular transaction.
We think it clear that the State of Connecticut is not deeply concerned as a matter of public policy in reprehending this contract. The right of each State to determine as a matter of public policy the conditions upon which the marital relations of its citizens may be dissolved is fully recognized; and it would seem that the same policy ought to control the validity of contracts made in view of pending divorce proceedings. It is no part of the public policy of Connecticut to be more careful than the State of Dakota itself in protecting the divorce courts of Dakota against collusion.
We have assumed that the policy of the State of Connecticut is opposed to contracts between husband and wife made after divorce proceedings have been instituted and with a view to fixing by mutual agreement the amounts to be paid by the husband in lieu of alimony. It may be doubted, perhaps, whether the case of Seeley's Appeal,
It does not appear whether the contract here in question was or was not concealed from the South Dakota court; but, as it was valid, there can be no presumption of any motive for concealing it. On the whole record, the contract is not so violative of the public policy of this State as to prevent a recovery.
On the trial of the action the defendant introduced in evidence articles of separation made in New York between the plaintiff and the defendant in July, 1902, expressing the fact that the plaintiff and the defendant had agreed to live separate and apart. The defendant then offered in evidence a certified copy of all the proceedings in the South Dakota divorce suit for the purpose of showing that the plaintiff had testified before the South Dakota court in such proceedings that she had been deserted by the defendant. The evidence was claimed in support of the allegations of the second defense. The defendant also called the plaintiff as a witness and inquired whether she had testified in the divorce suit in South Dakota that her husband had *384 deserted her and whether his living apart had been contrary to her wish and desire.
All this evidence was objected to, and excluded on the ground that the second defense contained no allegation of fact, and that the evidence was not relevant to any issue in the cause. Upon an examination of the pleadings, we think the evidence was properly excluded.
There is no error.
In this opinion the other judges concurred, except WHEELER, J., who dissented.