In joining in the opinion of the court I wish to set forth my reasons in amplification thereof and take this means for doing so. In my opinion there is not sufficient evidence in the record to show that the petitioner had knowingly participated in the fraud which had been perpetrated upon the court in the Sager v.Sager divorce proceedings. Had there been evidence to indicate that, in addition to giving her money with which to pay her attorney's fees, the petitioner had been actively involved *Page 16 in the securing of the fraudulent Sager divorce decree in question, the parties would have been in pari delicto and the petitioner would have had no standing in equity.
However, this is a case of a married woman who had secured a divorce decree by her own fraud and perjury and who succeeded in entering into the pseudo-marital relationship with the petitioner. The law appears to be rather harsh in dealing with the offending spouse in such a case because she is entitled to neither alimony nor allowance upon the dissolution of the unholy alliance; and only where there is proof of a contract of joint venture is the offending putative spouse permitted to receive any property or a share of the profits from the jointly operated business.
Here it is contended that the evidence indicated the existence of a joint venture contract. But in the Ah Leong case (AhLeong v. Ah Leong, 29 Haw. 776; 27 F. [2d] 582), which was a much stronger case for the woman, the court found that no joint venture contract, express or implied, existed. The record below fails to disclose evidence of the existence of any such contract. What little and sketchy evidence there was consisted of testimony tending to prove that the respondent occasionally did work in the business, which admittedly was owned and operated by the petitioner as a sole proprietorship. There was no evidence whatsoever which by inference, or otherwise, tended to prove that a contract or agreement for a joint enterprise existed between the parties or that either of the parties had ever considered that the business was jointly owned by both petitioner and the respondent at any time during the continuance of the pseudo-marital relationship.
The respondent's contention is that the chancellor made a finding of fact that a joint venture existed. My *Page 17 view is that the final decree of the chancellor is effective notwithstanding his preliminary conclusion to the contrary. Moreover, as already indicated, I am of the opinion that evidence in the record which tends to show that occasionally the respondent assisted in the operation of the petitioner's business was wholly insufficient as a matter of law to substantiate the respondent's claim that there is sufficient evidence of the existence of a contract of joint venture. The conclusion reached by the chancellor as embodied in the decree to the effect that no joint venture existed was amply sustained by the evidence, their being no showing of facts or circumstances from which the existence of a contract of joint venture might be inferred or implied.
The respondent relies upon the Ah Leong case for some measure of relief. In that case relief was given to the innocent spouse upon the humane theory that to deny relief to an innocent woman under the circumstances would amount to a denial of fundamental justice and equity. Where the woman is the offending party, as in this case, there is no good reason or logic for extending that principle of natural or fundamental justice enunciated by the ninth circuit court of appeals in the Ah Leong case, supra.
However, there is no dispute as to the fact that aside from domestic duties, the respondent performed actual services in connection with the petitioner's business enterprise for a period of ten years, for which no compensation as such has been paid to her. Inasmuch as the petitioner is seeking affirmative relief in equity to reform the deeds to real property held in the joint names of the parties, it is but plain equity to require of him to do equity by paying the respondent the fair and reasonable value of such services as a condition to the granting of such relief. *Page 18