I am in accord with the holding that a probate judge had authority to perform a marriage ceremony.
I think the award of alimony was excessive, but from the way the case was presented to the trial court, appellant is not entitled to relief.
I am unable to subscribe to the majority view that a party may practice a fraud on the courts of this state, then go into the courts of a neighboring Republic and there practice a fraud upon its courts, *Page 380 and having enjoyed the fruits of her conduct, return to her own repudiated courts and find sanctuary for a plea to be allowed to profit by her own wrong. I doubt that the trial court committed itself to any such unusual doctrine.
As appraised by the majority opinion, the trial court found on request of appellee that appellant had exercised undue influence and duress on the appellee in compelling her to go to Mexico. The majority say it is unnecessary to pass on the correctness of this finding. I think it should have been passed on. This writer early in consideration of this case declared in conference that if this finding is sustained by substantial evidence, there would be nothing to appellant's claim that appellee is estopped to challenge the Mexican decree. I am authorized to say that a majority of the court think such finding is not supported by substantial evidence. That the trial court and appellee considered this finding material and vital is manifest. There is little to suggest that without it the decree complained of would have been rendered.
I think it proper to set forth some further reasons in explanation of my dissent.
It is urged that public policy requires that a decree of divorce entered without jurisdiction should be vacated. The argument would have much force if plaintiff was trying to sustain the status of wife to the defendant. It is for the purpose of sustaining the marital relations of the parties which impels the courts to say that for the protection of society the state is interested in the regularity of divorce proceedings. In the case at bar, plaintiff does not seek to sustain the marriage status, but seeks to further destroy it, and where there are no children involved, the state has no interest in the question whether the plaintiff accomplishes the termination of the marriage status through a court of her domicile or through courts of some other jurisdiction. See McGraw v. McGraw, 48 R.I. 426, 138 A. 188. When courts set aside or disregard decrees invalid because obtained by collusion or fraud, it is not out of regard to the parties concerned but from motives of public policy, and it should appear that the party moving is not acting merely for a mercenary purpose.
In Todd v. Rhodes, 108 Kan. 64, 193 P. 894, 896, 16 A.L.R. 423, the court said: "The motive for the assault upon the decree may well be a determining factor in case of doubt."
It is suggested that the plaintiff, in addition to her mercenary motive of securing alimony, had a right to invoke the equity jurisdiction of the courts of this state to procure a valid divorce. The divorce she had obtained in Mexico was valid in Mexico until set aside. She should have been relegated to a direct attack upon the judgment in the court which rendered it.
It is said that the public has an interest in the proper maintenance of the marriage *Page 381 relation, and public policy forbids that the parties shall agree to its dissolution, or shall enter into any collusion to bring about that result. As Mr. Chief Justice HUDSPETH says, a satisfactory solution of the divorce problem has not yet been found.
Mr. Nelson, in his work on Divorce Separation, at § 289, says: "Courts often comment upon the folly of refusing divorce to parties where they are irreconcilable and so alienated that a reunion will not take place, and the denial of divorce will cast them upon the world, in the dangerous position of husbandless wives, and wifeless husbands; and if the court had the discretionary power that courts of equity have in regard to other matters relating to kindred rights, it would be proper to grant a divorce. But in the absence of statutory permission, a divorce will not be granted because the parties are unable to live together."
Our 1933 Legislature molded the public policy in this state along the broad and liberal lines suggested by Mr. Nelson when there was imported into our statute a new ground for divorce, namely, "incompatibility." If the parties in good faith conclude that they are incompatible and cannot continue to live together as husband and wife, then, without the existence of any of the other grounds of divorce, the court may dissolve the marriage. I do not criticize this legislative policy. There are many who think it a wise one. There are many who hold to the theory that the state has as much interest to see an unhappy marriage terminated as it has to see a happy one endure. I agree with Mr. Chief Justice HUDSPETH that since the importation into our law of "incompatibility" as a ground for divorce, the so-called interest of society in preserving the marriage relation by making divorces difficult to obtain has very largely disappeared.
Since the plaintiff did not seek to restore the situation to the status quo ante, it is difficult to see how public policy is promoted by destroying the marriage relation existing between defendant and the woman whom he married after plaintiff had acquiesced for eight months in the Mexican decree, thus entangling her in a web of intolerable difficulties woven with the assistance of the unclean hands of plaintiff. This thought has found expression elsewhere.
The Georgia Supreme Court in McConnell v. McConnell,135 Ga. 828, 70 S.E. 647, 649, refused to countenance the conduct of a husband who permitted his wife to obtain a decree of divorce without objection and without bringing to the attention of the court the fact that he did not reside in the county presided over by the superior court granting the decree. The Supreme Court called attention to the fact that the husband waited for nine months to bring a suit to set aside the decree, and went on to say: "In McNeil v. McNeil, 170 F. 289, 292, 95 C.C.A. 485, 488, the court said: `The safety of society *Page 382 imperatively demands that one who seeks to overthrow an apparently valid decree of divorce should proceed with the utmost promptness upon discovery of the facts claimed to show its invalidity. It must be apprehended that a man who has secured a decree of divorce, valid on its face, may endeavor to marry again, thus entangling some innocent woman in most intolerable difficulties, should the divorce be afterwards annulled. In such a case, one who seeks the aid of equity should, in limine, make it appear that she has proceeded in good faith and with reasonable diligence.' In this connection, see 2 Black on Judgments, §§ 929, 930; 2 Nelson on Divorce Sep. §§ 1055, 1056; Bledsoe v. Seaman, 77 Kan. 679, 95 P. 576."
In Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068, 1071,273 P. 176, the court recognized the principle that jurisdiction of the subbject-matter cannot be conferred by consent, nevertheless deciding that a party consenting to a decree could not without claim of fraud or mistake have a decree vacated. The court quoted a note in 3 A.L.R. 535, as follows: "The party at whose instance a judgment is rendered is not entitled, in a collateral proceeding, to contend that the judgment is invalid. Neither want of jurisdiction, defect of procedure, or any other ground of invalidity can be availed of collaterally, by the party who is responsible for the existence of the judgment."
The court said that the principle on which the cases supporting this declaration rest is not technically the doctrine of estoppel, but that it is unimportant "whether the principle applied be described as estoppel, quasi estoppel, waiver, ratification, election, or as a requirement of consistency in conduct."
The Court of Appeals of New York in Starbuck v. Starbuck,173 N.Y. 503, 66 N.E. 193, 194, 93 Am. St. Rep. 631, thought if it were important to find an element making the conduct of the party truly "estoppel," it could be found in some cases, saying: "If Starbuck had gone to that state and had contracted a marriage with a woman there, who acted upon the faith of the decree that the plaintiff had obtained, it may be that a question of estoppel would have been presented. Moore v. Hegeman, 92 N.Y. 521, 44 Am.Rep. 408. But we do not deem it necessary to determine that question at this time. We prefer to rest our decision upon the principle that the plaintiff, having invoked the jurisdiction of the Massachusetts court and submitted herself thereto, cannot now be heard to question the validity of its decree."
The court also said: "There are a number of cases in which the courts of this state have refused to recognize the validity of divorces obtained in other states upon grounds insufficient for that purpose in this state, when the defendant resided here and was not personally served with process and did not appear in the action. Matter of Kimball, 155 N.Y. 62, 49 N.E. 331; Williams v. Williams, 130 N.Y. 193, *Page 383 29 N.E. 98, 14 L.R.A. 220, 27 Am. St. Rep. 517; De Meli v. De Meli, 120 N.Y. 485, 24 N.E. 996, 17 Am. St. Rep. 652; Cross v. Cross, 108 N.Y. 628, 15 N.E. 333; O'Dea v. O'Dea,101 N.Y. 23, 4 N.E. 110. But in none of these cases did the party procuring the decree seek a benefit by having it held invalid. A party cannot avail himself of a defense or of a right to recover by means of an invalid decree or judgment obtained by him; but, on the other hand, he may not be heard to impeach a decree or judgment which he himself has procured to be entered in his own favor."
The foregoing decision was followed by the New York Supreme Court in Weber v. Weber (1929) 135 Misc. 717, 238 N.Y.S. 333,335. The proceedings were similar to those in the case at bar. The court said: "Plaintiff contends and alleges in his complaint that the conduct of the parties constitutes a fraud upon the people of the state of New York, and upon its laws, because neither of the parties left the state of New York to obtain such decree. It may possibly be that such a fraud was committed, although I do not decide that question here, but it does not lie in the mouth of either of them to now cry `fraud' when each of them was a party to such alleged fraud. It is a general fundamental maxim of the common law that no one shall be permitted to profit by his own fraud, to take advantage of his own wrong, to found any claim upon his own iniquity, or to acquire property by his own crime. Riggs v. Palmer, 115 N.Y. 506,22 N.E. 188, 5 L.R.A. 340, 12 Am. St. Rep. 819; Kelsey v. Kelsey,204 A.D. 116, 197 N.Y.S. 371, affirmed 237 N.Y. 520,143 N.E. 726. The plaintiff having appeared in the Mexican court proceeding, and later accepted benefits under the decree granted there, should not be permitted to come into a court of equity and endeavor to profit by his own wrong. The parties, having invoked the jurisdiction of the Mexican court, cannot now be heard to attack the decree of that court. See Starbuck v. Starbuck,173 N.Y. 503, 66 N.E. 193, 93 Am. St. Rep. 631, and cases there cited."
A decision though on dissimilar facts is in principle applicable is Loud v. Loud, 129 Mass. 14. In that case a husband who had been married and was domiciled in Massachusetts left his wife there and went to Maine, where he straightway filed a libel for divorce. The wife appeared and later withdrew her opposition on being paid a substantial sum of money. A divorce was granted. The husband married again and the first wife brought against him a libel for divorce grounded on the cohabitation incident in this second marriage. It was said by Chief Justice Gray: "The conclusive answer to this libel is, that the wife not only appeared in the suit brought by the husband, but that she afterwards executed a release, reciting the divorce therein obtained by him, and for a pecuniary consideration discharging all her claims upon him or his estate. Having done this, she cannot treat his subsequent marriage and cohabitation *Page 384 with another woman as a violation of his marital obligations to herself. The defence is allowed, not upon the ground of a strict estoppel, but because her own conduct amounts to a connivance at, or acquiescence in, his subsequent marriage."
In Carson v. Carson, 141 Okla. 106, 283 P. 1015, the court decided: "Party procuring divorce decree under verified petition setting forth jurisdictional facts respecting residence and accepting benefits thereunder is estopped from challenging court's jurisdiction."
The court quoted from the Ellis Case, cited by Mr. Chief Justice HUDSPETH in his dissenting opinion herein, as follows: "One reason why they ought not to be permitted, by going into another state and procuring a divorce, to escape accountability to the laws of their state, is that their act is a fraud upon the state, and an attempt to evade its laws, to which it in no wise consents, and it may therefore complain. 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 judgment they procured that court to render."
In the case at bar it appears that the plaintiff and defendant left Tucumcari and drove to El Paso, Tex., and thence to Juarez, Mex., with the intention of securing a divorce by the Mexican courts. They carried their marriage license along with them to be introduced in proof as part of their case. They set out upon this enterprise with an intention of practicing a fraud upon the courts of this state and accomplished that purpose. Why should one of the parties, after obtaining the benefits of the decree of the Mexican court secured by her connivance, and having returned to this state and acquiesced in that decree for eight months, during which interval her erstwhile spouse had remarried, be permitted to come into a court of equity and say: "It is true that I have practiced a fraud upon your court by going to Mexico and there practicing a fraud upon that court through false statements inducing it to take cognizance of the case and grant a divorce, but I forgot to ask for alimony, and although the defendant has since remarried, I ask you to disregard two of your controlling maxims, — that he who comes into equity must come in with clean hands, and that one will not be permitted to secure an advantage arising from his own wrong, — and give me a decree of divorce with alimony." I agree with Mr. Freeman's text, cited, that, "such a practice cannot be tolerated." Therefore, I dissent. *Page 385