I am in full accord with the holding of the majority that a probate judge has authority to perform the marriage ceremony, but am not able to concur in the affirmance of the judgment awarding $4,000 to appellee and her attorneys, nor in the ruling on the plea of estoppel.
A satisfactory solution of the divorce problem has not yet been found. Mr. Justice Swift, after administering the English divorce laws for seventeen years, lately pronounced them wicked and cruel. The Russians, at the other extreme, found their too liberal divorce laws unsatisfactory. Our own Legislature only a few years ago added "incompatibility" to the eight grounds for divorce theretofore existing (Laws 1933, c. 54). This is one of the grounds for divorce in Mexico. See Bethune v. Bethune (Ark.)94 S.W.2d 1043, 105 A.L.R. 814. The main difference between voluntary divorces granted to residents of Mexico and divorces granted on the grounds of incompatibility under our statute is that the latter is a home product. It is in the province of the Legislature to make the law and establish the public policy with reference to divorce. The Catholic Chancellor who does not believe in divorce may assuage his conscience with the thought that if he carries out the will of the Legislature he will have performed his full duty under his oath of office. It is, I believe, generally conceded that if a judge permits his decision to be colored by his personal predilections or prejudices against a cause, a law, or a litigant, the result is likely to lend support to those who charge the courts with usurping the powers of the legislative branch of the government. Such seems to have been the case here. On no other theory can I reconcile the award of $4,000 — one-half of *Page 376 appellant's property — to appellee, who resided with him less than a year. Able counsel for the appellee in her complaint pictured the defendant as a brute, guilty of high crimes and misdemeanors. If guilty, he richly deserves punishment, but such punishment should come after conviction in a criminal court. It may be remarked, however, that two of the allegations of the complaint investigated, one charging that appellee was coerced into appearing in the Mexican court and consenting to the decree, and the other, that all the property was community property, proved to be without verity. But the learned chancellor evidently felt strongly on the subject of the allegations — remarked: "Considering the conduct of the defendant" — and apparently permitted his feelings to enter into the award to appellee. The recited facts in the majority opinion alone are sufficient to discredit the charge of coercion. The court, at the close of the final hearing, said: "The Plaintiff has introduced no proof to controvert the testimony of the Defendant, further than that that has been elicited on cross examination, and the Court will amplify to this extent in sustaining this motion of Defendant permitting them to put on this proof; it amounts to this, all before judgment, to permit the Defendant to allege that this was separate estate, and to submit proof in that particular."
The following are from the findings of fact requested by the appellee:
"V. That at the time of the marriage of plaintiff and defendant, the defendant was the owner of the following described real estate, situate in the City of Tucumcari, County of Quay, State of New Mexico, to-wit:
"Lots One (1) and Two (2) in Block One (1) of the McGee Second Addition to the town, now City, of Tucumcari, New Mexico. Lots One (1) to Six (6) in Block One (1) of the Barnes Addition to the town, now City, of Tucumcari, New Mexico. Adopted. Harry L. Patton, Judge.
"VI. Defendant was further the owner of certain personal property consisting of an automobile and of household furniture and camp equipment, he being then engaged in the occupation of a Tourist Camp in said City of Tucumcari, New Mexico. Adopted, Harry L. Patton, Judge.
"VII. That the reasonable value of the property so owned by the defendant is the sum of $8,000.00, exclusive of indebtedness thereon; and that defendant owned a considerable portion of said property at the time of the marriage of the parties hereto, but that the earnings from the marriage community have gone into, and have increased the value of said property, and that certain portion thereof is now community property. Adopted. Harry L. Patton, Judge.
"VIII. That the defendant is a strong, well and able bodied man, capable of earning a good support for himself and all who are dependent upon him, including the plaintiff. Refused. Harry L. Patton, Judge.
"IX. That the plaintiff is untrained and unskilled in any particular line of employment *Page 377 and is unable to earn for herself the reasonable or respectable living and has for a long time been dependent upon her relatives for her support. Refused, Harry L. Patton, Judge."
The appellant testified that there was no community property, testimony which, of course, the chancellor was at liberty to disbelieve, but the appellee, the only other witness on this point, only claimed that the receipts of the business were $50 a week, and stated that she did not know what was paid to the help. After the overhead charges of the business and the family expenses were deducted [In re Winston's Will (Winston v. Fitch),40 N.M. 348, 59 P.2d 904] and a reasonable amount allowed for the "rents, issues and profits" of the separate property on which the business was conducted — which adhere to the separate estate under our statute (Comp.Stat. 1929, § 68-303) — taking into consideration that considerable money was spent by the parties in travel, there was necessarily very little, if anything, left out of the earnings of the community.
If the unsupported allegations of the complaint were sufficient to satisfy the divorce laws and the third party to the suit referred to in the opinion of the majority — the state — they certainly were not sufficient to meet the constitutional guaranties affecting criminal trials.
"It would not be just to convict a defendant by reason of a judgment obtained against him civilly by a mere preponderance of evidence." 15 R.C.L. 1004.
The taking of the appellant's property for alleged crimes would not be unlike the procedure inveighed against by Mr. Justice Field in the case of Windsor v. McVeigh, 93 U.S. 274, 280,23 L. Ed. 914 (quoting Mr. Justice Story in the case of Bradstreet v. Neptune Ins. Co., Fed.Cas. No. 1,793, 3 Sumn. 600, 601) as follows: "`It is a rule,' said the learned judge, `founded in the first principles of natural justice, that a party shall have an opportunity to be heard in his defence before his property is condemned, and that charges on which the condemnation is sought shall be specific, determinate, and clear. If a seizure is made and condemnation is passed without the allegation of any specific cause of forfeiture or offence, and without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary sovereign edict."
Aside from the appellant, other parties are concerned. The hands of three women have touched funds involved in this cause, viz.: The first wife of appellant, who labored with him for a dozen years in the accumulation of the property, and died. Her children survive. The childless second wife, the appellee, who resided with appellant for less than a year, and who is now a party to this, the third divorce proceeding filed for the dissolution of this marriage — the first complaint having been filed February 7, 1933, five months and two days after the marriage. The third wife, who married appellant after *Page 378 the Mexican divorce was granted, and who brought into the community some hundreds of dollars which went into betterments of the property. Appellee's counsel magnanimously stated, "We are perfectly willing that she have the $450," but the matter was overlooked in the drawing of the final decree and a lien fixed on all appellant's property in favor of the appellee.
If I do not mistake the meaning of the opinion of the court, the majority are in accord with the view that the alleged crimes should be given no weight in determining the amount of alimony. The basis of the court's rule affirming the award of $4,000 is not clearly stated. Reference is made to the illness and destitution of appellee, but the refusal of the chancellor to make requested finding IX, quoted above, indicates that he at least has misgivings as to these claims, having seen and heard appellee, and possibly thought these allegations were as wanting in verity as others more thoroughly investigated. If she had no property at the time of the trial, she was in no worse condition in that regard than when she married appellant. As pointed out in the majority opinion, the court's decision is setting a precedent. No doubt the same rule will apply to the rich as well as to this ignorant, ill-advised man with a capital of $8,000. It seems that a man may expect a decree in favor of the wife who has lived with him a year giving her one-half of his separate estate, whatever that may amount to, to be upheld in this jurisdiction. And if the feminist view, that the surviving husband should regard half of the community property on the death of his wife as a trust fund descending to her children, prevails in the minds of the court, then he may expect a decree giving to his helpmate of one year all of his separate property to be affirmed by this court. That is what the man in the street has come to call "the alimony racket." This allowance of alimony appears clearly to be an abuse of discretion.
Perhaps it will be well to take up the question of estoppel where the majority left off in the quotation from Ellis v. Ellis,55 Minn. 401, 56 N.W. 1056, 1058, 23 L.R.A. 287, 43 Am. St. Rep. 514. That court held in that case that in the third class of cases, i.e., "* * * in proceedings between the parties when both voluntarily appeared in the action in which the divorce was granted, and consented to the jurisdiction, or that the court might determine the facts on which the jurisdiction depended," that the determination could not be contradicted. The court said: "But the parties do consent, and why should they be heard to complain of the consequences to them of what they have done? Why should they be permitted to escape those consequences by saying: `It is true that by a false oath made by one of us, and connived at by the other, we committed a fraud in the Wisconsin court, and induced it to take cognizance of the case; but now we ask to avoid its judgment by proof of our fraud and perjury or subornation of perjury.' Because we do not think it can be done the parties must, so far as their individual interests are concerned, abide by the *Page 379 judgment they procured that court to render."
In Curry v. Curry, 65 App.D.C. 47, 79 F.2d 172, 174, a case in which the court found that at the time the Nevada divorce was granted on appearance of both parties in that jurisdiction they were in reality residents of the District of Columbia, the Court of Appeals said:
"Where a party litigant has invoked the jurisdiction of a court, and the other party has voluntarily appeared and submitted thereto, it is not consonant with ordinary conceptions of justice for another court to countenance an attempt to repudiate that jurisdiction, particularly when such attempt involves considerable sums of money expended, and the unsettlement of domestic relations created under color of the judgment. Loud v. Loud, 129 Mass. 14; Chapman v. Chapman, 224 Mass. 427,113 N.E. 359, L.R.A. 1916F, 528; Parmelee v. Hutchins, 238 Mass. 561,131 N.E. 443; Kaufman v. Kaufman, 177 A.D. 162, 163 N.Y.S. 566; Kelly v. Kelly, 118 Va. 376, 87 S.E. 567; Harding v. Harding,198 U.S. 317, 25 S. Ct. 679, 49 L. Ed. 1066.
"And, of course, this salutory principle is of general application, not confined to the active parties in matters of divorce, as in the cases above cited, for it can never lie with a litigant either by passive consent, or by affirmative action, to lead a court to find a fact justified and fit to be carried into judgment, and then to contend in another court that the same fact at the same time and within his own knowledge, was otherwise and competent to support a contrary judgment.
"For a consent decree, within the purview of the pleadings and the scope of the issues, is valid and binding upon all parties consenting, open neither to direct appeal nor collateral attack. `A fortiori, neither party can deny its effect as a bar of a subsequent suit on any claim included in the decree.' Nashville, etc., Railway Company v. United States, 113 U.S. 261, 266,5 S. Ct. 460, 462, 28 L. Ed. 971. And so, even where the consent decree is of an interlocutory nature. In re Metropolitan Railway Receivership [In re Reisenberg] 208 U.S. 90, 28 S. Ct. 219,52 L. Ed. 403; Parish v. McGowan, 39 App.D.C. 184, 201."
See, also, the Restatement of Conflicts of Law, §§ 111, 112; Freeman on Judgments (5th Ed.) par. 1438; Annotation, 105 A.L.R. 817.
For the reasons stated, I dissent.