(concurring).
While I concur in the opinion of affirmance by Justice Northcutt, I believe the trial court’s judgment should be affirmed for the additional reasons herein stated.
It should be first observed that the same trial judge heard both the original divorce action and subsequently the bill of review without the aid of a jury in either case.
In the appeal of the latter case now before us, the trial court made and filed its material findings in effect as follows: that at the time the settlement agreement was signed and the divorce action was pending, Sylvia Huff had full knowledge of the values and extent of the community estate, or the means of ascertaining such, and if there was any lack of her knowledge of such, it was the result of her own negligence or that of her attorneys and not a result of fraud or duress brought to bear by appel-lee herein; that Sylvia Huff was represented by able and loyal attorneys of her own choosing, who fully advised her of her rights in executing the property settlement agreement and that she executed the agreement voluntarily after having been thus fully advised and with knowledge that she was accepting less than one-half of the community estate and that such was not the result of her fear of appellee; and that Sylvia Huff was not prevented by any act or conduct of appellee from fully presenting all the facts in the divorce action or from making a defense there in her own behalf.
The findings of the trial court are not challenged or attacked by appellants either *321by assignment of error or otherwise. At any rate the findings seem to be well supported by competent evidence of probative force, some of which was given either by appellant, Sylvia Huff Carver, or by her attorney, Hon. E. G. Pharr. A portion of the settlement agreement found to have been voluntarily executed recites that:
“It being the intention of the parties to this agreement that all of their property, both community and separate, be divided and disposed of by this instrument and it is specifically agreed by and between the parties hereto that any property not listed herein shall and will be the property of the party of the first part and in this connection party of the second part specifically agrees that she has had full and complete access to all the records, bank accounts, bank statements, and all records whatsoever pertaining to plaintiff’s business over a period of the past ten years and that she is fully cognizant and aware of all of the assets belonging to said estate and that if any items are omitted that said omission is and was unintentional and that she here and now disclaims any right, title or interest in and to any said items and she further stipulates and agrees that she has had the advice and counsel of her duly constituted attorneys employed by her and that she has had the entire agreement fully explained as well as all of her legal rights explained herein by her duly constituted attorneys and that she executes this instrument on her own volition with full knowledge of the finalty of same and executes same in the absence of any promises, future favors or anything whatsoever on the part of the party of the first part.” (S.F. 467.)
Appellants’ claims of an unequal division of the property does not necessarily entitle them to relitigate the same matters again under a bill of review. In a petition for a bill of review the trial court is not necessarily concerned about whether or not there was an unequal division of the property since there is no statutory requirement for an equal division of the property. In the recent case of Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409, 413 (writ'of mandamus denied), this court said in part:
“The trial court in dividing property between the parties in a divorce suit may take into consideration any disparity between the earning powers, the business opportunities, capacity and ability of the parties, and the benefits which the party not at fault would have derived from the estate of the other party through a continuance of their marriage. Liddell v. Liddell, Tex.Civ.App., 29 S.W.2d 868; Farris v. Farris, Tex.Civ.App., 15 S.W.2d 1083; Bagby v. Bagby, Tex.Civ.App., 186 S.W.2d 702; 15 Tex.Jur. 584.”
The rule there announced has support in the case of Burguieres v. Farrell, Tex.Civ. App., 85 S.W.2d 952-976, concurring opinion by Justice Brown.
Under the record presented and the law applicable thereto it appears that appellants have not by their pleadings and the proof tendered met the essential requirements for establishing recovery under their petition for a bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; Burguieres v. Farrell, Tex.Civ.App., 85 S.W.2d 952; Garza v. King, Tex.Civ.App., 233 S.W.2d 884 (writ refused); Gray v. Moore, Tex.Civ.App., 172 S.W.2d 746; Bankston v. Bankston, Tex.Civ.App., 251 S.W.2d 768; Sugg v. Sugg, Tex.Civ.App., 152 S.W.2d 446; Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; Johnson v. Templeton, 60 Tex. 238, 239.
Concerning appellants’ points three and four charging that the settlement agreement is illegal and void because the contract was entered into for the purpose of inducing ap-pellee to get a divorce so his former wife could marry Tom Carver, the evidence reveals conclusively that appellee and his former wife separated on or about August 27, 1952, and the agreement in question was thereafter executed but before the divorce action was heard. The same was executed also after appellant, Sylvia Huff Carver, and her present husband, Tom Carver, had agreed to each obtain a divorce from their *322respective spouses and marry each other. Sylvia Huff Carver testified that immediately after she left appellee on August 27, 1952, she drove to Clovis, New Mexico, and immediately thereafter employed Mr. Buzzard, an attorney at Clovis, and the Lubbock law firm of Croslin and Pharr to represent her in the divorce action and the property settlement and that Croslin and Pharr, attorneys of her own choosing, did represent her in such matters. She further testified that she and Tom Carver had already agreed in July of 1952 to get a divorce from their respective spouses and to marry each other. The record reveals that Carver did get a divorce from his then wife and that he and Sylvia Pluff married on December 1, 1952, the same being the very day appellee was divorced from her. It appears from the record and we must assume in the absence of a direct finding that the trial court found and concluded that the parties had previously separated and were living apart contemplating a divorce at the time they executed the settlement agreement in question.
It has been held that a husband and wife living apart and contemplating an immediate divorce proceedings and decree, as was shown to be true in the case at bar, may make a valid contract settling their respective property rights between them. Such a contract is not without consideration or against public policy. Scott v. Ft. Worth Nat. Bank, Tex.Civ.App., 125 S.W.2d 356, (writ dismissed); 15B Tex.Jur. 151.
Assuming, however, that the said agreement did violate public policy and should 'not be enforced, appellant, Sylvia Huff Carver, according to the record before us, is in no position to complain. If the primary purpose of the agreement was to in- ' duce appellee to procure a divorce from her so she could marry Tom Carver, such was collusion to which she was a party, for which reason she is not permitted to recover in a subsequent suit on the grounds the agreement was void. Moor v. Moor, Tex.Civ.App., 63 S.W. 347 (writ refused), 25 Tex.Jur. 631, Sec. 219; Hendricks v. Hendricks, 216 Cal. 321, 14 P.2d 83.
For the reasons stated in my opinion appellants’ points three and four fail in their purpose.
The appellate courts of this state will presume upon the appeal of any case that the judgment appealed from is correct unless the contrary is made to appear affirmatively from a proper record of the proceedings had in the court below. Smothers v. Gawlik, Tex.Civ.App., 214 S.W.2d 894; 3 Tex.Jur. 424, Secs. 302 and 303; Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395; Erback v. Donald, Tex.Civ.App., 170 S.W.2d 289. In attempting to show affirmatively that an error exists as reflected by the record, appellant must be guided by the rules of law and of equity applicable to the record produced.
For all the reasons shown, in my opinion appellants have failed to affirmatively show any error in the trial court’s judgment, for which reason the same must be affirmed.