Opinion
Opinion filed October 6, 1926.
Divorce — Collusive Agreement.
1. In divorce proceeding finding of court that parties thereto, believing that libelee had meritorious defense, prior to trial entered into an agreement whereby libelee, in consideration of libelant's provision to make financial provision for her, was to make no defense, held supported by testimony of libelant.
2. Such an agreement is collusive, and justifies dismissal of petition for divorce.
PETITION FOR DIVORCE on grounds of intolerable severity. The proceeding was uncontested. Trial by court at the December Term, 1925, Bennington County, Chase, J., presiding. After hearing court dismissed petition. The libelant excepted. The opinion states the case. Affirmed.
Jones Jones and Frank Hendrick (of New York City) for the libelant.
Lawrence, Stafford Bloomer for the libelee.
Present: POWERS, SLACK, BUTLER, and FISH, JJ., and MOULTON, Supr. J.
An absolute divorce was prayed for and the petition was uncontested. The court found that prior to the trial, the parties, believing that the libelee had a meritorious defense, entered into an agreement whereby the libelee, in consideration of libelant's promise to make financial provision for her, was to make no defense. This finding, if supported by evidence, is conclusive in support of the decree dismissing the petition. So the one exception we find it necessary to consider is the one to this finding. The transcript which is before us shows that the finding is amply supported by the testimony of the libelant himself, who admitted that such a contract was made; and that part of the finding that refers to a belief in the libelee's defense is fairly inferable from the circumstances.
That such an agreement as was entered into was collusive is sustained by the following authorities: Sheehan v. Sheehan, 77 N.J. Eq. 411, 77 A. 1063; Lanktree v. Lanktree, 42 Cal.App. 648, 183 P. 954; Dinsmore v. Dinsmore, 128 Va. 403, 104 S.E. 785; Adams v. Adams, 25 Minn. 72, 9 R.C.L. 168; Edleston v. Edleston, 179 Ky. 300, 200 S.W. 625, 2 A.L.R. 689. Note 5 to this case, found on page 706 of 2 A.L.R., states the law on this question and discusses the whole subject in connection with the cases.
Decree affirmed.