(dissenting).
I regret my inability to concur in the majority opinion. Nothing herein contained is intended as any criticism of or reflection upon the court granting the divorce or counsel drafting the agreements herein involved. I am well aware of the liberality with which both courts and members o£ the bar have come to view the proceedings relating to divorce, and especially am I aware of the indifference of the public with reference to the case with which the marital ties are being severed.
The practice in certain states and countries of granting divorces ad libitum, and the attitude of certain classes of people toward marriage and divorce long has been the subject of tabloid jokes. It matters not that many of the divorces obtained are of no validity in other states or countries than that in which they are granted, if, indeed, they are valid in the state where decreed. It is difficult to conceive of one so credulous as to believe that a party leaving his or her longstanding residence has any intent of taking up a residence in another state or in a foreign country where divorces are obtained with notorious ease, except for the purpose of obtaining a divorce. Lefferts v. Lefferts, 263 N. T. 131, 188 N. E. 279, November 28, 1933; Andrews v. Andrews, 188 U. S. 14, 38, 23 S. Ct. 237, 47 L. Ed. 366.
*510A woman who, with her relatives, not long ago acquired ■ considerable notoriety through her husband’s acts in taking the law into his own hands and causing the death of a person alleged to have assaulted her, has recently proclaimed publicly that she was on her way to another state to obtain a divorce, not because she desired one, but because her husband wished it. Members of a well-known group now in the public eye take on and put off marital obligations seemingly at will.
With such an attitude of indifference as the public evinces to the practices which have grown up in recent years in severing the marital ties, it is little wonder that courts and counsel fail at times to examine critically agreements entered into by the parties in anticipation of a decree of divorce, and that practices have grown up in arranging for a divorce between the parties which, if questioned, would not stand the recognized tests of legality.
This action has grown out of an agreement between the appellee and her husband relating to an anticipated divorce between them, and an agreement by the appellant who guaranteed the carrying out of the agreement on the part of the husband, who was her son.
Suit was brought on the contract of guaranty in the District Court of Massachusetts. The evidence in the-case consists of a petition for divorce filed by the husband in the superior court for Providence county in the state of Rhode Island, and an answer in the form of a cross-petition filed by the wife, an agreement between husband and wife, the contract of guaranty by the appellant, and the several decrees of the state court granting the divorce.
The District Court on the face of these documents held that the contract of guaranty was a legal and binding contract, and ordered the jury to bring in a verdict for the plaintiff for an agreed amount. The appellant contends that on the face of the record the agreement between the husband and wife was collusive, or at least was entered into toifacilitate and induce the obtaining of an early divorce by the wife, and was against public policy and illegal, and therefore the contract of guaranty that the agreement on the part of the husband would be carried out in all its details cannot be enforced.
I think the appellant’s contention should have been sustained. While the written agreement between the husband -and wife related in part to subject-matter, the adjustment of which may be properly agreed upon by the parties prior to divorce, if it receives the sanction of the court, certain features of the agreements here involved in connection with the pleadings and the circumstances under which the agreements were made seem to me to show that the agreements, if not collusive, were clearly entered into in order to promote and induce the procuring of an early divorce by the wife, and were never shown to the court for its sanction.
The husband in this ease filed his petition for divorce under oath on May 6, 1927, alleging'that his wife, the appellee here, had been guilty of extreme cruelty toward him, which, if true, entitled him to a divorce. He also prayed for the custody of their two children. Nearly two months later, or on June 25, 1927, the appellee and her husband and the appellant entered into the agreements here in question, and at the same time the appellee filed an answer to her husband’s petition in the nature of a cross-petition, alleging the recriminatory charge of extreme cruelty on the husband’s part. It is well-established law that, if the charges in the petition and answer were proven, neither was entitled to a divorce. Church v. Church, 16 R. I. 667, 19 A. 244, 7 L. R. A. 385.
The public policy of the state of Rhode Island with reference to divorce is well expressed in the case of McLaughlin v. McLaughlin, 44 R. I. 429, 432, 117 A. 649, 659, in which case her eminent Chief Justice Sweetland said:
“Marriage and the family relation is regarded as one of the foundations of our social order. To many in our community the contract of marriage is a solemn obligation, requiring the sanction of religion, and one which should not be dissolved, save for the gravest reasons.. * ' * * When the marriage relation is established, the state is deeply interested in its continuance. In his supplementary brief the respondent takes exception to the statement, made at the hearing, that divorces are not favored in the law, and calls our attention to the fact that they are expressly permitted under our statute. The two statements exactly declare our law and public policy. The state strongly desires a continuation of the marriage relation, and hence is unfavorable to divorce. When, however, one of the parties has been guilty of serious fault, subversive of the marriage, and the other is entirely blameless, then the law will permit a divorce, but upon the prayer of the innocent spouse only. * *' * A petition for divorce, however, seeks to set aside a relation which the state desires shall continue for the good of society. In every proceeding *511for divorce the state is a party, and the action has been called ‘a triangular suit,’ with the interests of tho state under the protection of the court. Berger v. Berger, 44 R. I. 296, 317 A. 361. The state will not permit a divorce to be granted by default, nor upon admissions of the respondent made in the pleadings, but only upon affirmative convincing evidence that the petitioner is without fault and that the respondent has been guilty of an offense which is destructive of the marriage contract. After evidence warranting a decision in favor of the petitioner, the court may not enter a final and operative decree until six months after the decision. There are a number of apparent causes for this extended delay, among which some courts, with reason, have seen a purpose to give further opportunity for condonation and for reconciliation.” (Italics supplied.) Also see Hurvitz v. Hurvitz, 44 R. I. 478, 119 A. 58.
The general rule as to tho validity of agreements between husband and wife in anticipation of a divorce is well stated in 6 R. C. L. § 177, p. 772, as follows:
“The marital relation, nnlike ordinary contractual relations, is regarded by the law as the basis of the social organization. The preservation of that relation is deemed essential to the public welfare. When tho marriage relation has been assumed, it is indissoluble except by the solemn judgment of a court for some cause which, after severe and jealous scrutiny, the court shall find sufficient under the law to warrant the judgment. Agreements between the parties intended to facilitate the procuring of a divorce are considered a fraud upon the law and upon the courts which administer the law. Consequently, in order to discourage the making of such agreements, the courts ordinarily refuse to enforce any promise growing out of them. Public policy requires that the interests of the parties shall be disregarded. Though an agreement made in contemplation of a divorce often contains other provisions which, standing alone, are not invalid, yet when the general purpose of the agreement or some of its provisions is to facilitate the procuring of a divorce, the courts, notwithstanding the existence of legal grounds for divorce, have refused to enforce any part of the agreement. The rule has been applied to agreements between the husband and wife, as well as to agreements between either of them and a third party. The rule is most frequently applied where one of the terms of the agreement is a promise by one party not to contest the application of the other party for a divorce.
Where the parlies agree that one shall bring a suit to dissolve the marriage, and that the other will make no defense, or a mere nominal defense, the agreement becomes collusive and fraudulent, and is without validity. Similarly it has been decided that an agreement that the defendant in a divorce suit shall refrain from taking steps to set aside a decree which has been wrongfully obtained is against public policy, and that an agreement not to make a motion for a now trial after a decree of divorce has been entered is just as vicious as an agreement not to defend the suit, although it has been declared that, in the absence of fraud, a settlement made while a motion for a new trial or an appeal could have been entered, will be sustained. Agreements conditional on divorce are likewise generally held to be against public policy.”
Tho same standard of public policy in relation to marriage and its dissolution by divorce is recognized, I think, in all tho statep, even if not in practice in some of them, and the law stated in 6 R. C. L. supra, governing agreements in anticipation of divorce is supported by the authorities. Barngrover v. Pettigrew, 328 Iowa, 533, 104 N. W. 904, 2 L. R. A. (N. S.) 260, 111 Am. St. Rep. 206; Sayles v. Sayles, 21 N. H. 312, 317, 53 Am. Dec. 208; Blank v. Nohl, 112 Mo. 159, 169, 20 S. W. 477, 18 L. R. A. 350; Wolkovisky v. Rapaport, 216 Mass. 48, 50, 102 N. E. 910, Ann. Cas. 1915A, 809; Davis v. Hinman, 73 Neb. 850, 103 N. W. 668, 11 Ann. Cas. 376; Spreckels v. Wakefield (C. C. A.) 286 F. 465, 467; Moore v. Moore (C. C. A.) 255 F. 497, 502, 503.
The husband in tho agreement between him and his wife, though not admitting that tho appellee had a just and proper cause of divorce, openly stated that he was willing that she should obtain a divorce, naively adding, providing she can prove her ease to the satisfaction of the court, and that he was willing to pay her counsel fees of $1,000- to prosecute her charges, provided a decree of divorce was obtained by tho appellee before July 35-, 1927.
While he did not expressly agree not to present his recriminatory charges in defense, that, I think, from the record in the case, was clearly the intent and understanding of the parties; a draft decree in favor of the wife was drawn at the time and made a part of the agreement; and the husband agreed, if a decree were granted, that he would not oppose the entry thereof, or, in other words, would not appeal therefrom. It was also stipulated that none of the agreements were binding unless a decree was obtained by tlie wife before *512July 15,1927, and a final decree was entered within eight months.
In Adams v. Adams, 25 Minn. 72, 80, and Sheehan v. Sheehan, 77 N. J. Eq. 411, 421, 77 A. 1063, 140 Am. St. Rep. 566, it was held that the voluntary payment of counsel fees to enable a wife to prosecute a petition for divorce was held to indicate that the husband did not intend to obstruct the “accomplishment of this object by any contest.” A fortiori I think this would be so where the husband had previously filed a recriminatory petition, and the payment of counsel fees was made upon condition that the wife should obtain an interlocutory decree within three weeks and a final decree in eight months. It does not appear that the payment of counsel fees was ever allowed by the court or its sanction by the court requested. The elaborate arrangements in ease of a decree of divorce being granted to the wife for the custody and support of the children are also suggestive of an inducement to prosecute her petition for divorce. The husband agreed to pay the wife $250 per month for the support of each child, whether needed or not, and whether such payments were ordered by the court, or whether he was liable after the children became of age, and without regard to any other question whatsoever, the wife to have.absolute discretion in the disbursement of the money, and further agreed to bind his estate to continue the payments according to the agreement in ease of his death. He also furnished a guaranty by the appellant that the payments would be made by him or out of his estate, and that the guaranty should not in any way be affected, modified, or annulled so as to release, relieve, or in any manner discharge or modify the. obligations of the guarantor thereunder, except by consent of the appellee, until said agreement had been finally and completely executed.
In consideration of these agreements the wife waived all claims for alimony, though it might well be urged that payments in lieu of alimony were concealed in liberal provisions for the support and education of the children whether needed or not, the disbursement of the funds so provided being left to the absolute discretion of the appellee: These agreements, if carried out, take out of the hands of the court the right of the husband to obtain relief in ease of a change in his circumstances.
It is certain, I think, that the court never saw the agreement between these parties. If it did, it did not give its sanction to all the provisions, as it did not include in its decree an approval of the counsel fees agreed upon, or that the payments for the support of the children should continue in ease of the husband’s death before the children reached the age of -25 years, or that the payments should be "made whether or not the wife needed them for the support of the children, and regardless of the court’s power to change them, and regardless of any other question whatsoever; nor did the court recognize and sanction the contract of guaranty.
Whether there was collusion was a question of fact, which it is suggested the appellant could have proved, if it existed; but to have done so would have shown that the divorce was invalid, which it is obvious, I think, that neither the appellant nor the husband has any desire to accomplish. As to whether the agreement was against public policy the appellant was content to rely upon the pleadings, agreements, and decrees as a question of law.
It may be conceded that agreements between husband and wife in anticipation of a divQrce as to the support and custody of the children, or as to a division of property or alimony, while not binding on the court, may not be against public policy; but otherwise, I think, where there are recriminatory petitions, and concurrent with the wife filing her petition in her answer, the husband enters into an agreement with her in which he expresses himself as willing that the wife should obtain the divorce, and without the sanction of the court voluntarily agrees to pay $1,000 as counsel fees to enable her to obtain a divorce, but on condition that she obtain her decree within three weeks and her final decree within eight months, and makes no defense or offers no proof of his recriminatory charge, and also agrees to make payments beyond the power of the court to order, and whether ordered by the court or not, and regardless of all other questions or matters whatsoever, and whether needed by the wife for the support of the children or not, and not to appeal from a decree granting a divorce, and in connection therewith the husband furnishes a contract of guaranty to insure the payments agreed to, even in case of the husband’s death, and the guarantor further agrees that the contract of guaranty shall not in any way be affected, modified, or annulled so as to release, discharge, or modify the guarantor’s obligations thereunder, except by consent of the guarantee.
It is clear on the face of this record, I think, that the agreements were entered into, not only to facilitate the obtaining of a divorce, but to induce the wife to obtain an *513early divorce, and were void as contrary to the public policy of the state of Rhode Island.
It is often said in support of the liberal attitude of some courts toward divorce: “Why compel them to live together, if they are mismated?” If that expresses the deliberate judgment of society, then change the laws defining the grounds of divorce and what constitutes a valid defense, and not compel the courts to wink at some of the present methods of procedure in order to conform to such a social standard.