Dennison v. Dennison

• Citation: 130 A. 463
• Parties: DENNISON v. DENNISON.
• Decision Date: 01 October 1925
• Court: New Jersey Court of Chancery

130 A. 463

DENNISON

v. DENNISON.

Court of Chancery of New Jersey.

Oct. 1, 1925.

Bill for specific performance by Effie F. Dennison against Wilburn N. Dennison. Decree for complainant.

Lehlbach, Johnson & Ormond, of Newark, for complainant.

Hugo Woerner, of Newark, for defendant.

BERRY, V. C. The bill prays specific performance of an agreement for the payment of alimony and counsel fees entered into between the parties while they were still husband and wife, but pending a suit by the wife, the complainant here, against her husband, the defendant here, for divorce instituted in Pennsylvania in May, 1920, on the grounds of adultery and extreme cruelty. The parties were married in the state of New Jersey. The acts of adultery charged were alleged to have been committed in New Jersey. The acts of cruelty charged were alleged to have been committed in the state of Pennsylvania, where the parties resided at the times mentioned. An order to show cause why defendant should not be obliged to pay alimony and counsel fee to complainant was entered in the Pennsylvania proceeding in January, 1922. On May 11, 1922, after the entry of this order, but before any hearing thereon, a written agreement was entered into between the parties reciting the divorce action and the alimony proceedings, where by the defendant agreed to pay the complainant $25,000 in lieu of alimony and counsel fees, $5,000 down and $2,500 annually thereafter for a period of eight years. Immediately after the execution of this agreement, the divorce libel was amended by stricking out the charge of adultery as one of the grounds for divorce. While the written agreement does not mention this fact, it appears from the testimony in this cause that the abandonment of the charge of adultery in the divorce action was one of the considerations of the agreement, and that another of the considerations was the agreement by the complainant not to institute proceedings against the corespondent named in the divorce libel for damages for alienation of the affections of the complainant's husband. A final decree for divorce was entered in favor of the complainant in the Pennsylvania proceeding on July 5, 1922. No defense to this proceeding was interposed by the defendant, and the decree was based upon the ground of extreme cruelty.

The $5,000 down payment mentioned in the agreement and the first annual installment of $2,500 due January 19, 1923, have been paid. The defendant refused to pay the installment falling due, under the terms of the agreement, on January 19, 1924, and thereupon this suit was brought to compel such payment.

The answer of the defendant filed in this cause alleges that the agreement is void as against public policy of the state of Pennsylvania, because collusive and as being an agreement to facilitate the procurement of a divorce; that the agreement was contingent upon the complainant here obtaining a decree of divorce in the Pennsylvania proceeding above referred to, and that one of the considerations for said agreement was his engagement not to defend said suit for divorce.

Counsel for defendant, in his brief, bases his argument upon three propositions, as follows: (1) That the complainant has an adequate remedy at law. (2) The agreement sued on is void in law because it is against public policy. (3) The agreement sued on is void in fact because it is collusive.

I shall consider these three propositions in the inverse order of their statement.

As a general proposition of law, it may be stated that all collusive agreements or agreements to facilitate divorce are void as against public policy. As was said by Vice Chancellor Garrison in Sheehan v. Sheehan, 77 N. J. Eq. 411, at pages 419 and 420, 77 A. 1063, 1066 (140 Am. St. Rep. 566):

"The policy of our law favors marriage, and disfavors divorce. Parties may not be permitted to make agreements with respect to divorce suits which would be perfectly proper to be made in other litigations. In divorce suits public policy requires that certain agreements shall not be made between the parties and when such interdicted agreements are made they are termed 'collusive.'"

See, also, Costill v. Costill, 47 N. J. Eq. 346, 21 A. 35; Drayton v. Drayton, 54 N. J. Eq. 298, 38 A. 25; Pohlman v. Pohlman, 60 N. J. Eq. 28, 46 A. 658; Griffiths v. Griffiths, 69 N. J. Eq. 689, 60 A. 1090, and see generally 13 Corpus Juris, p. 463. This is also the law in Pennsylvania. In re Mathiot's Estate, 243 Pa. 375. 90 A. 139; Hoffman v. Hoffman, 30 Pa. 417; Kilborn v. Field, 78 Pa. 194; Irvin v. Irvin, 169 Pa. 529, 32 A. 445, 29 L. R. A. 292; Latshaw v. Eatshaw, 18 Pa. Super. Ct. 465, and, at least in this state, collusion may be implied from the acts of the parties. Griffiths v. Griffiths, supra.

The question to be determined by me under this heading, therefore, is whether or not, in view of the evidence submitted to the court in this case, the agreement was, in fact, collusive, and in considering this question it must be borne in mind that the person most interested in having the agreement determined to be collusive, and, therefore, void, is the defendant himself.

The only testimony submitted indicating that the agreement here under review was collusive is that offered by the defendant. He testified that as a part of this transaction, although not expressed in the written agreement, he agreed not to defend his wife's suit for divorce, and that his obligations under the agreement were contingent upon a decree being entered against him; also, that the agreement on behalf of his wife to withdraw her charge of adultery is an additional feature which renders the agreement collusive. His testimony, coupled with his attitude on the witness stand, was very far from convincing, and it seems to me that the fact that he paid $5,000 to his wife's attorney on the day the terms of the agreement were concluded and nearly two months before the decree for divorce was entered, rather negatives his contention that the agreement was contingent upon the entry of a decree; but counsel for defendant insists that the court ought to infer collusion from the course of the divorce proceedings and the actions of the parties in connection therewith. While, of course, any agreement made between the parties to a divorce suit during its pendency is always open to suspicion, I do not find any evidence relating to the divorce suit here in question which is sufficiently convincing to me to justify me in finding collusion. Counsel for defendant suggests that it is logically inferable that, prior to the beginning of the divorce suit, both parties were desrrous of being divorced, and that the suit for divorce was the result of an agreement between them that the wife should obtain a divorce. The answer to this is that there is not a scintilla of proof on that point. It is quite clear to me that up until the time of the negotiations for the settlement of alimony, no agreement respecting the divorce suit existed between the parties. The contention of the defendant that the agreement was collusive rests entirely, therefore, upon his own testimony, and such inferences as the court might draw from the facts in connection with the divorce suit.

Opposed to this evidence is the positive testimony of the complainant herself and two reputable members of the Philadelphia bar, one of whom represented the defendant in the Pennsylvania divorce proceeding, and who prepared this agreement. These witnesses all testified clearly and positively that not only was there no agreement that the defendant should not interpose a defense to the divorce action, but that he had no defense to interpose. This presents a disputed question of fact, and I have no hesitancy in saying that I prefer to accept the testimony of the complainant and these two lawyers rather than that of the defendant. The clear weight of the evidence is against the defendant on this point. As to the withdrawal of the charge of adultery indicating collusion, to my mind it does not. This is not the suppression of a defense. It is an abandonment of one cause of action and might be considered as the suppression of scandal in the interest of morality. Such an agreement is perfectly proper under the Pennsylvania decisions. Irvin v. Irvin, supra. In that case the wife entered into an agreement that she would not assign any other cause for divorce than desertion. It was claimed that this rendered the agreement void, and the court said:

"There is no semblance of an illegal consideration in this agreement. She only expressly stipulates, she will not assign any other cause for the divorce than desertion. In this, there was not only nothing unlawful, but there was nothing discreditable to either. From the very fact of excluding other causes, there is a fair implication that the husband was conscious of the existence of others involving graver moral turpitude than desertion; a sense of shame in him still remained, and there was a willingness on her part to suppress that which would be disgraceful to him."

It seems to me that this language has an apt application to the facts in this case. I am, therefore, clearly of the opinion that the agreement was not collusive in fact. Second, is the agreement void in law as against public policy? In determining this question, it must be borne in mind that the agreement here in question is a Pennsylvania contract.

If the object of a contract is to divorce man and wife, the agreement is against public policy and void (13 Corpus Juris, 463) and, generally speaking, all agreements conditioned upon divorce are held to be void as against public policy. 13 Corpus Juris, 464. But the general rule is also that a contract in settlement of claims for alimony is valid where there is no collusion to procure a divorce and the fact that the agreement is entered into while divorce proceedings are pending will not affect its validity, unless it can be said that its purpose or effect was in some...