Ferret v. Ferret

• Decision Date: 05 November 1951
• Docket Number: No. 5273,5273
• Citation: 1951 NMSC 76,55 N.M. 565,237 P.2d 594
• Parties: FERRET v. FERRET.
• Court: New Mexico Supreme Court

Page 594

237 P.2d 594

55 N.M. 565

FERRET v. FERRET.

No. 5273.

Supreme Court of New Mexico.

Nov. 5, 1951.

F. A. Catron, Santa Fe, for appellant and cross-appellee.

Harry L. Bigbee, Santa Fe, for appellee and cross-appellant.

SADLER, Justice.

The decree under review is the subject of attack by the plaintiff below, appearing here as appellant. She brings it before us by direct appeal and the defendant, challenging correctness of the decree in certain particulars, comes up on a cross-appeal. The decree was entered in a divorce suit instituted by plaintiff against the defendant. It granted the plaintiff an absolute divorce from defendant on the ground of incompatibility. She seeks no modification of the decree in this particular. It is mainly the changes, alterations and modifications which the decree makes in a settlement aggreement entered into between the parties slightly less than a year before its entry of which plaintiff complains so vigorously.

The parties were married in a civil ceremony at Barcelona, Spain, on September 11, 1937. Shortly thereafter they left Spain and came to the United States, arriving here in October, 1937. Ever since the marriage and until the filing of the complaint in divorce they maintained toward each other the relationship of husband and wife, holding themselves out to the world and publicly representing themselves to be lawfully wed. There were no children born of the marriage.

There was no known legal impediment to their marriage at the time the ceremony was performed. However, at the trial the defendant offered in evidence, the plaintiff objecting to its admission, a photostatic copy of a certificate which recited that in a record described therein, certified as Record No. 182 of the Section of Matrimonies of the Civil Register, in Barcelona, Spain, there was found recorded the recital of a purported nullification of the civil marriage contracted by plaintiff and defendant, as aforesaid. On the margin of this record, there appears a notation declaring the marriage to be null and void by virtue of the provisions of the Ministerial Orders of August 12, 1938, and March 8, 1939. The exhibit offered did not purport to be a copy of the record in question but only a certificate of what was claimed to be disclosed by it. Nevertheless, and regardless of any effect the purported decree which the record recites might have or be lawfully entitled to, it in no manner denied or impaired the validity of the marriage of plaintiff and defendant as a valid and legal marriage under the laws of Spain appertaining thereto at the time it was performed.

When the plaintiff filed her complaint in divorce against the defendant, there was then pending on the civil docket of the same court a suit by defendant as plaintiff against this plaintiff as defendant seeking an annulment of the marriage entered into between them in Barcelona, Spain, as aforesaid. While matters stood thus and under date of July 15, 1948, one day before the filing of her complaint in divorce, the parties entered into a marriage settlement agreement in which the husband, Andres Ferret, was party of the first part and Camille Haynes Ferret, the wife, was party of the second part, the preamble to which reads as follows: 'Whereas, the parties hereto are now husband and wife, but have concluded that they can no longer live together in peace and harmony as such and have permanently separated, and whereas, being desirous of adjusting their respective property rights and all claims of whatsoever nature that either party may have or claim against the other, and the obligation of the first party to support the second party.'

At its very outset, the agreement called upon the wife forthwith to institute suit for divorce in the district court of Santa Fe County and to prosecute the same expeditiously in accordance with the rules of the court, the husband agreeing at the same time to dismiss forthwith with prejudice his annulment suit pending in the same court. The paragraphs of the agreement providing for payments by defendant to plaintiff, read as follows:

'It Is Further Agreed that the party of the first part will pay to the party of the second part the sum of $125.00 at the execution hereof for her support and maintenance and in settlement of her property rights, and the sum of not less than $250.00 on the 10th of each successive month hereafter, together with an additional one-third of all of his net income in excess of $1000.00 per month which he shall receive.

'It Is Further Agreed that the party of the first part shall keep an accurate and complete set of books showing all cash received in the practice of his profession, all accounts receivable and an accurate and complete account of all expenses connected with the operation of his profession; that the party of the first part shall remit to the party of the second part her one-third interest in all net sums which he shall receive in excess of $1000.00 per month on or before the 15th day of the succeeding month or advise the net amount of his income if under $1000.00. It is further agreed that the $250.00 per month, which the first party is to pay in any event, is not to be deducted from his gross income as an expense, except in his income tax returns nor are federal income taxes. That his net income shall be ascertained on the same basis and in the same manner as is used in computing Federal Income Tax, except no deductions shall be allowed first party for charitable contributions. It is further agreed that the party of the first part shall have an audit made of his books by qualified accountants at the end of each year, and that first party will furnish to the party of the second part a true and correct copy of same, together with a copy of his Federal and State income tax returns.'

Other portions of the agreement relate to disposition of certain life insurance policies carried by defendant, limited payment of the $250 per month and the one-third of his net income as previously specified to the period the plaintiff should remain single, such payments to cease if she remarried and relieved defendant from further contributions other than keeping up premiums on the insurance policies mentioned, which were to be kept in the name of plaintiff as beneficiary regardless of any remarriage. Still other provisions related to a division of certain furniture and personal effects of the parties and for occupancy by the plaintiff of the home in which she was then living in Santa Fe until expiration of the lease held by the parties and for certain payments by defendant toward upkeep of the household for the period the plaintiff was to occupy the house.

The plaintiff attached a copy of the settlement agreement to her complaint in divorce as Exhibit 'A', requesting that the court approve and confirm same as a fair and equitable adjustment of the property rights of the parties and all other matters therein set forth. The agreement was duly executed and acknowledged by both parties and bore written approval of the counsel representing the parties, respectively, at the time of its execution. The court's findings and conclusions touching this agreement as well as certain other phases of the case read as follows:

'10. That neither of the parties hereto fully performed the duties and obligations provided for under the contract herein.

'11. That the contract attached to plaintiff's complaint and marked Exhibit A is not an equitable adjustment of the property rights of the parties nor is it an equitable or fair adjustment of the matters set forth therein.

'12. That the evidence with respect to community property belonging to the parties is either entirely lacking, or so meager that the Court is unable to make a finding thereon.

'13. That the plaintiff is capable, qualified and able to hold a responsible position and to support herself.

'14. That the contract attached to plaintiff's complaint and marked Exhibit A should not be approved by the Court.

'From the foregoing Findings of Fact the Court concludes as matters of law:

'1. That the Court has jurisdiction of the parties hereto and of the subject matter hereof.

'2. That as a result of the marriage ceremony entered into by them in Barcelona, Spain, on the 11th day of September, 1937, plaintiff and defendant legally became husband and wife.

'3. The Court having reserved its ruling on the objection of plaintiff to the admissibility in evidence of the certificate, photostatic copy whereof was attached to defendant's answer as Exhibit '1' thereto, now holds as a matter of law that the same is not admissible in evidence.

'4. That even if said certificate, Exhibit '1' to defendant's answer, were admissible and were admitted in evidence as proof of the nullification by the Spanish Government of the marriage between plaintiff and defendant, this Court, having due regard for the applicable principles of comity and international law, is not required to recognize and give effect to the said acts of the Spanish Government and could not do so without violating the due process and equal protection clauses of the Constitutions of the State of New Mexico and of the United States, the constitutional prohibitions of the State of New Mexico and the United State against ex post facto laws, and the recognized policy of the courts of this State relating to the recognition to be accorded marriages legally contracted and the legality of the marital status of the parties resulting therefrom.

'5. That under the laws of this State plaintiff and defendant are now and at all times material herein have been legally husband and wife.

'6. That the contract entered into by the parties hereto attempts to infringe on the powers of the Court with respect to the allowance of alimony.

'7. That the evidence introduced herein, including that contained in the contract, is not sufficient to enable to the Court to make an adjudication with reference to community...