(dissenting).
I do not agree the record in this case supports the conclusion reached by the majority, and I therefore dissent.
Mrs. Hitchcock alleges she was induced to agree to a settlement of the dissolution case *608in which she was the respondent because of “gross irregularity and misconduct” by the trial court.
It is interesting to note the background from which these charges arose.
The case came on for hearing as a contested dissolution matter. No minor children were involved; and, of course, fault is no longer a consideration. This left the contestants with only one battleground— property settlement and alimony.
The trial court heard evidence for half a day. After the noon recess, at which time her husband’s case had not been completed, the trial court asked to see the parties and counsel in chambers. According to the record, it was then apparent the principal asset was Mr. Hitchcock’s interest in a food brokerage business. The trial court suggested the case should be settled. He stated he did not feel Mrs. Hitchcock should have any interest in the business, although it should provide her with the standard of living she had been used to. The judge also made statements to the effect that he wasn’t interested in learning how to run a brokerage business and that the parties could make a better settlement than he could make for them.
The parties and counsel then retired to conduct almost two hours of negotiations, during which the court indicated the trial should resume if settlement could not be reached. On one occasion, Mrs. Hitchcock asked for “another five minutes.” Eventually a settlement was reached. It provided that Mrs. Hitchcock should have the homestead and that Mr. Hitchcock should pay off the incumbrance, that she should have $1,500.00 a month alimony, and property settlement of $50,000.00 to be paid over a five-year period.
Several days later a decree was entered incorporating this settlement into its terms. Mrs. Hitchcock now repudiates it because of “duress” practiced upon her by the court.
I take it my disagreement with the majority concerns only the particular facts of this case and does not rest upon a difference of opinion concerning the general principles which govern such matters. The law looks with favor upon the settlement of disputes, particularly in family and marital cases. A trial judge may, within proper limits, urge settlement. He is frequently the only catalyst from which successful negotiations may spring. See Schraeder Iron Work, Inc. v. Lee, 26 Cal.App.3d 621, 103 Cal.Rptr. 106, 118 (1972); In re Trust of Dorothy Luria Mintz, 444 Pa. 189, 282 A.2d 295, 299 (1971); Chertkof v. Harry C. Weiskittel Co., Inc., 251 Md. 544, 248 A.2d 373, 376 (1968); Gardner v. Mobil Oil Company, 217 Cal.App.2d 220, 31 Cal.Rptr. 731, 6 A.L.R.3d 1451 (1963). See also Annot. 6 A.L.R.3d at p. 1459 (1966).
I accept the proposition that a trial judge should not force parties into agreements they would not otherwise make. The majority says that is what happened here. I say it didn’t. Both lawyers welcomed the suggestion that they settle. Mrs. Hitchcock’s lawyer testified he and his New York expert had agreed at lunch (before the judge made any suggestion) that the case should be settled because they felt Mrs. Hitchcock couldn’t do as well as she expected to. In this connection Mrs. Hitchcock’s attorney testified he was willing to settle the case partially because of the fact he had no confidence in his own value expert. The notion to settle did not originate with the judge, and the claim that the settlement was made reluctantly and only in the face of the court’s insistence is just not borne out by the record.
It is quite true the trial court stated he felt Mrs. Hitchcock should have no proprietary interest in her husband’s business; but he also said the business should afford her the same type of living style she had become accustomed to.
This was not an arbitrary or capricious opinion but was based on the judge’s philosophy as to what could best serve the interests of the litigants. The business was a personal-service operation. It had no substantial net worth. Its value could be destroyed by loss of a few key accounts. It was, for all practical purposes, a one-man company. Perhaps this is best reflected by *609the testimony of Donald F. Neiman, Mrs. Hitchcock’s lawyer, at the hearing to vacate the decree. I set out an excerpt from it:
“Q. After you came back from lunch, will you tell the Court what happened?
A. Well, we ran into Judge Missildine, and he indicated he would like to talk to Steve Hansen and myself back in Chambers when Steve got back. During that recess I had lunch with the expert witness from New York, and we discussed the outlook of the case, and this expert witness is also an attorney although he is not familiar with the courtroom, but we both concluded that from the way the evidence was going, as far as the Judge’s view of it, that he would never force a sale of Davis Brokerage Company, that there was a possibility that if we could get into it, we should think about possibly settling it. This was right before Judge Missildine—
Q. What made you feel the Judge would not force a sale of the Davis Brokerage Company?
A. It is a going concern that has fifty-five salesmen and has a large sales force. It has three executives that are very key to the business, that if it were sold, there would be no guarantee for any non-competing type of thing, and basically that was what we were looking at.
Q. That was just your private surmise between the two of you?
A. Yes.
Q. The judge hadn’t said anything about that?
A. No.”
This appears to have been the real basis for the settlement. What the judge said later was not the motivating force Mrs. Hitchcock now says it was. Nor did the fact the judge made his remarks without having heard Mrs. Hitchcock’s evidence amount, as she claims, to “prejudging” her case. Her testimony could not have changed the nature or character of the business, only its value. This factor played no part in what was said.
I do not quibble about whether some of the judge’s remarks might have been better left unsaid or have been couched more judiciously. But when Mrs. Hitchcock’s complaints are examined one by one they are so insubstantial that I find no possibility, however remote, she was coerced or that she was the victim of judicial duress.
The court made disdainful reference to an adult daughter as a “freeloader,” a remark at which Mrs. Hitchcock took umbrage. However, he did so in the context that this was making Mrs. Hitckcock’s alimony requirements greater than they should be.
She also resented the judge’s comparison — ill advised, perhaps — of Mrs. Hitchcock’s right to an interest in her husband’s business to his own wife’s interest in his retirement fund should they be divorced.
Another statement with which she found fault was the court’s admonition to either settle or get on with the trial because he didn’t “want to be here all night.” Surely this was little more than a pointed prodding that trial time was wasting, without apparent results.
During all of this, Mrs. Hitchcock had the benefit of her lawyer’s counsel as well as the advice of her brother, with whom she is shown to have consulted. I simply cannot accept the majority’s conclusion she was forced into an improvident settlement against her will. In fact when she was pressed for proof of such fact, the best Mrs. Hitchcock could come up with was that she felt “trapped” and “frustrated” because the judge didn’t “act at all the way they do on TV.”
Judge Holliday found Mrs. Hitchcock’s application to vacate the decree was groundless. I think that finding should be affirmed.
REES and HARRIS, JJ., join in this dissent.