Davis v. Davis, 27830.

• Decision Date: 11 April 1940
• Docket Number: 27830.
• Citation: 101 P.2d 313,3 Wn.2d 448
• Parties: DAVIS v. DAVIS.
• Court: Washington Supreme Court

101 P.2d 313

3 Wn.2d 448

DAVIS v. DAVIS.

No. 27830.

Supreme Court of Washington

April 11, 1940

Department 1.

Action by Blanche E. Davis against Thomas H. Davis, for separate maintenance, wherein defendant filed cross-complaint for annulment of marriage. From that portion of a decree annulling the marriage which awarded a money judgment against defendant, defendant appeals.

Decree set aside in its entirety, and cause remanded.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Chas. A. Cave, of Auburn, and James G. Mulroy, of Seattle, for appellant.

Ralph A. Horr and Albert M. Franco, both of Seattle, for respondent.

BLAKE Chief Justice.

Plaintiff brought this action for separate maintenance alleging that she and defendant were married at Tacoma on October 3, 1938. Defendant answered, denying all the material allegations of the complaint, and by way of cross-complaint alleged that the marriage ceremony performed on October 3 was a nullity by reason of the fact that plaintiff was then the wife of one Pettit; that prior to the ceremony plaintiff had represented that she was an unmarried woman, but that subsequently she told defendant that she had, shortly prior to October 3, taken up her residence in Reno, Nevada, and had, on September 29, 1938 obtained a decree of divorce from Albert Pettit.

The cause came on for hearing July 5, 1939, and '* * * the court having heard and considered testimony produced by and in behalf of the * * * parties present in court,' made findings of fact in substance as follows: That in July, 1937 plaintiff, then the wife of Albert Pettit and a resident of Tulsa, Oklahoma, entered into an agreement with defendant 'whereby in consideration of mutual promises of marriage,' plaintiff should leave Tulsa and take up residence in Reno, Nevada, for the sole purpose of obtaining a divorce from Pettit; that pursuant to the agreement plaintiff disposed of certain property interests in Oklahoma 'of the approximate value of Three Thousand Dollars ($3,000) for * * * $1,000.00,' and thereafter, 'in the Courts of the State of Nevada * * * brought suit for divorce from her husband Albert Pettit'; that in prosecuting such suit and in moving to the state of Washington plaintiff has expended the entire proceeds from the sale of her Oklahoma property; that 'plaintiff, in consequence of her performance of the aforesaid agreement, has incurred expenses in the sum of One Thousand Dollars ($1,000.00)'; that a marriage ceremony, 'purporting to unite plaintiff and defendant as husband and wife,' was performed on October 3, 1938, and that subsequent thereto and until February 21, 1939, they 'lived together as husband and wife'; that ' THROUGH THEIR RESPECTIVE ATTORNEYS, Plaintiff And defendant * * * orally stipulated and agreed in open court that a decree of annulment should herein be entered.' (Italics ours.)

A decree was accordingly entered annulling the marriage and awarding plaintiff a money judgment of $2,000 against defendant. From the latter portion of the decree defendant appeals.

The cause is here for review upon the pleadings and findings. The plaintiff has attempted to make a part of the record here an affidavit and certain exhibits which defendant has moved to strike. This motion must be granted. There is no bill of exceptions nor statement of facts. Neither are the exhibits referred to and made a part of the findings. Unless affidavits and exhibits be incorporated in a bill of exceptions or statement of facts or be so referred to as to become a part of the findings, they cannot be considered as part of the record in this court. Kennedy Drug Co. v. F. W. Keyes Drug Co., 58 Wash. 499, 109 P. 56; Spokane Savings & Loan Society v. Park Vista Improvement Co., 160 Wash. 12, 294 P. 1028.

From the findings it is apparent that the money judgment was intended as compensation for damages suffered by plaintiff for breach of the contract entered into between the parties in July, 1937. That contract, however, proposing, as it did, the procurement of a divorce by plaintiff from Pettit was void as against public policy. 17 Am.Jur. 156; II Restatement Law of Contracts, 1098.

A judgment for damages based upon a breach of such a contract cannot be upheld. Delbridge v. Beach, 66 Wash. 416, 119 P. 856. Conceding this, plaintiff urges that the decree of annulment itself is void because it is based upon a stipulation of the parties. Defendant counters this contention with two theories: (1) that plaintiff, not having appealed, has no standing to raise the question; (2) that in the absence of a statement of facts it is presumed that there was evidence to support the findings. Both propositions may be accepted and yet the problem of the validity of the decree cannot be ignored. It is against public policy to grant decrees of divorce or annulment of marriage upon the consent of the parties. 19 C.J. 149. This public policy, universally recognized, is carried into our statute law. By Rem.Rev.Stat. § 985, it is declared: 'When the defendant does not answer, or, answering, admits the allegations in the complaint, the court shall require proof Before granting a divorce or a decree of nullity.'

And Rem.Rev.Stat. § 996, provides: ' In all instances where the superior court shall grant a divorce, it shall be for cause distinctly stated in the complaint, and proved, and found by the court, and the court shall state the facts found upon which the decree is rendered; and when either party shall signify a desire to appeal from any of the orders of the court, in the disposition of the property or of the children, the court shall certify the evidence adduced on the trial, and the supreme court shall be possessed of the whole case as fully as the superior court was, and may reverse, modify, or affirm said judgment, according to the real merits of the case.' (Italics ours.)

We have never been called upon to construe the latter section at the instance of a party who has not appealed from a decree by which he claims to be aggrieved. In construing it we have always held, however, that findings must be made setting forth the grounds upon which the decree is granted. State ex rel. Tufton v. Superior Court, 46 Wash. 395, 90 P 258; Thornton v. Thornton, 136 Wash. 129, 238 P. 977. In the former case it was...