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District Court of Appeal, Second District, Division 2, California.

HOWARD v. ADAMS et al.*

Civ. 12264

Decided: January 30, 1940

Leonard Wilson, Walter G. Danielson, and Gibson, Dunn & Crutcher, all of Los Angeles, for appellants. A. Brigham Rose, of Los Angeles, for respondent.

This action was instituted by plaintiff against Lily B. Howard, a distant relative of plaintiff's erstwhile husband. Just before the close of the trial, said defendant passed away and, upon the motion of her counsel, C.A. Adams was substituted as special administrator against whom proceedings were carried forward until the testamentary executors of decedent were substituted as defendants. While only thus distantly related, plaintiff and decedent had been intimate friends since the former's childhood. When plaintiff was seven years of age, decedent told her that she had adopted plaintiff and that she would always keep plaintiff with her. This she did until plaintiff's own marriage to Edward B. Howard.

On June 19, 1927, plaintiff was living with her said husband at their home in Los Angeles. They had three children, one girl six, and two boys, three and eight years of age. Believing that the abuses of her husband would justify a final separation, plaintiff advised decedent of her resolution to effect her purpose by obtaining a decree of divorce. Upon plaintiff's declaring her said intention, decedent protested to plaintiff the damage which decedent would suffer in her social and banking connections by reason of any divorce scandal, and proposed “if you go to Reno, Nevada, and procure a divorce and waive your right to alimony support, maintenance, attorney's fees and court costs against your husband and then return and live with me in my home and give me your assistance, society and comfort, and look after my home, I will support you for the rest of your life and I will support and educate your children”. Whereupon plaintiff accepted the offer of decedent and, with monies supplied her by decedent, she journeyed to Reno, Nevada, for the single purpose of obtaining a divorce. She accomplished her purpose and promptly returned to her said home in Los Angeles in October of the same year. While plaintiff resided in her own home until about June 1, 1929, decedent gave her from $200 to $250 per month. After said date, decedent supported plaintiff and her children in decedent's home and gave plaintiff $150 per month until the middle of 1933. Though deprived of her said allowance, plaintiff and her children remained with decedent until July 6, 1936, on which date, following a quarrel with decedent's newly acquired husband, plaintiff was barred from said home.

Basing her claim upon said ouster, on the 6th day of February, 1937, plaintiff instituted this action for damages against decedent on account of the breach of said agreement. A verdict was returned in favor of the plaintiff for the sum of $120,800. Upon the hearing of the motion for a new trial, the court ordered a reduction of the judgment to $85,727, under pain of granting said motion.

The executors demand a reversal of the judgment upon the following grounds: (1) the agreement between decedent and plaintiff was void as against public policy; (2) said agreement was contrary to the statute of frauds and is not enforceable; (3) the action was abated with the death of the decedent; (4) the amount of damages awarded is grossly excessive and was a result of passion and prejudice of the jury; (5) the trial court committed prejudicial error by failing to limit the award of damages to the present value of future payments under the contract over plaintiff's life expectancy and by failure to make deductions for earnings by the plaintiff or her children; (6) plaintiff's counsel was guilty of misconduct so gross as to prevent a fair trial; (7) the errors complained of were incurable by a reduction of the amount of the verdict from $120,800 to $85,727.

That the consideration for the promise of decedent was plaintiff's said promise to sojourn for a season in Nevada for the sole purpose of obtaining a divorce is inescapable. Her counsel, in his opening statement, advised the jury that decedent said to plaintiff “you must go to my attorneys and they will agree to get a divorce in a hurry and if you go to Nevada and not stir up any notoriety * and go back there quietly and get your decree, I will support you and your children as long as you live and I will take care of the support of your children”; that “in acquiescence to this offer on the part of defendant aunt plaintiff agreed and did depart to Nevada and set up the customary residence that they do there, to get a hasty peaceful divorce, so to speak”. In view of plaintiff's testimony, said utterance of her counsel is significant. Wrightson v. Dougherty, 5 Cal.2d 257, 54 P.2d 13; Paul v. Layne & Bowler Corp., 9 Cal.2d 561, 71 P.2d 817. Plaintiff testified: “I went to Reno, Nevada, to get my divorce at my aunt's request and under her agreement. It was upon that agreement that I went there and got it. At the time I got it my husband was not in Nevada but was right in Los Angeles where he always had been.” Plaintiff's son, age nineteen, also testified: “Prior to going to Reno, I accompanied my mother, brother and sister to Aunt Lily's at 624 South Mariposa. Mother had black eyes and a bruised cheek. In a conversation there, my mother said she had been beaten by my father and my aunt said my mother would have to get rid of him and when mother said she was going to see some lawyer, my aunt said: ‘You can't do that, it will be pretty hard on me; you will have to go to Reno; the publicity will hurt my bank; you will have to go to Reno’. When something was said about who was going to take care of my mother and the three children, my aunt said: ‘Well, I will take care of all of you forever, if you go to Reno’.”

From the foregoing evidence supplied by plaintiff and her son, supplemented by the emphatic announcement of her counsel, it is beyond dispute that plaintiff's promise to decedent was to get a divorce, and furthermore, she was to violate the public policy of California by visiting a sister state for the purpose of gaining such decree and was to violate the laws of Nevada in so doing. She had no intention of giving up her California domicile or of abandoning her home here. But, on the contrary, she planned to return to live with decedent and, in fact, did return to the very home she left before her departure for Nevada.

Therefore, the consideration for decedent's promise was plaintiff's procurement of a divorce decree in Nevada and the release of her husband from the obligation in the future of supporting his wife and children. The fact that plaintiff had already formed an intention to obtain a divorce neither instills virtue into her promise nor raises it from the status of a nullity to that of a valid covenant. Neither is its quality improved by decedent's belated antagonism to divorce. Her esteem or lack of esteem of “divorce” performed no office in the logic of plaintiff; neither did it vaccinate the public weal against the contamination certain to flow from such an immoral accord. Where a promise to pay money is made as a consideration for the promisee's procuring a divorce or where the money is payable only in event the divorce be procured, the consideration is immoral, poisons the stream of the social conscience and is void. It is void “if its tendency is to cause a divorce to be obtained”. Moore v. Moore, 3 Cir., 255 F. 497, 499. The marital status is the very basis of the social order and agreements that tend to destroy or impair that status by encouraging divorce will not be enforced. Ibid. The policy of the law is against all such contracts and the courts should refuse to enforce them “and, where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible. * Therefore any agreement for divorce, or any collateral bargaining promotive of it, is considered unlawful and void”. Newman v. Freitas, 129 Cal. 283, 61 P. 907, 910, 50 L.R.A. 548. In the case of Pereira v. Pereira, 156 Cal. 1, 103 P. 488, 23 L.R.A.,N.S., 880, 134 Am.St.Rep. 107, where the husband promised his wife $10,000 if she would obtain a divorce decree, recovery of the money was denied because the consideration for his promise was void. In the case of Whiting v. Whiting, 62 Cal.App. 157, 216 P. 92, 96, the parties having attempted by prenuptial contract to fix the amount due the wife in event of divorce, when they appeared at last before the court for an order fixing her support, said contract was scorned as “a menace to the marriage relation” and tended to facilitate the dissolution of the marriage. In the case of Brown v. Brown, 8 Cal.App.2d 364, 47 P.2d 352, a promise of the husband to pay $12,500 if his wife should obtain a divorce, was void in that it tended to facilitate divorce and recovery was denied. Theisen v. Keough, 115 Cal.App. 353, 1 P.2d 1015; McCahan v. McCahan, 47 Cal.App. 173, 190 P. 458.

In the case at bar, the promise of plaintiff to decedent was trebly grievous. Not only did she promise to obtain a divorce but she promised to waive the obligation of her husband to support his family and also she undertook falsely to declare her residence to be in Nevada. This release of her offending spouse from his obligation of her future support encouraged him to desist from opposing her action; discouraged the natural tendency to seek a pardon and a restoration to the affections of her who was entitled to all his loyalty, kindness and support. Regardless of any objection decedent may have entertained toward divorce, her intrusion into the affairs of plaintiff and her husband by her promises encouraged a divorce and that was a violation of public policy.

Plaintiff argues that the principle above discussed is not involved because any promise made to plaintiff was not made by her spouse but by another who was not to be benefited by the performance of plaintiff and who was to suffer detriment in consequence of the divorce. Offense to public policy is not determined by the identity of the offender. Public policy is a course of social behavior whereby the rational adherence to the moral code is required of all who receive, or assert a claim to, the protection of the sovereignty. Public policy is the inarticulate background of the Penal Code. In the first place, decedent's proposal was definitely to advantage the wayward husband, for whom decedent was concerned, and her precedent conditions were designed to avoid hardships for him as well as embarrassments for herself. Consequently the corrupting effect of decedent's offer was as though it had fallen from the lips of the husband himself. As to decedent, she was not to suffer detriment for she had made her said offer in exchange for the society, comfort and assistance of plaintiff which she received. But so far as the state is concerned, irrespective of the fortunes of its constituents under such circumstances, its detriment is certain where its public policy is violated, its laws are evaded and its majesty is offended. It is such violation, evasion and offending that nullifies decedent's contract. Any promise which rests “for its fulfillment upon the basic consideration of securing a divorce” must fail. Smith v. McPherson, 176 Cal. 144, 167 P. 875, L.R.A.1918B, 66. It is the policy of the law to encourage forgiveness of causes for divorce and to favor arrangements which tend to restore harmony between husband and wife and a renewal of conjugal relations. Forster v. Cantoni, 19 Misc. 222, 44 N.Y.S. 241. And this applies to a “third party” agreement as well as to one between the spouses. 6 R.C.L. 772.

To emphasize California's policy toward divorce, we may point out that the legislature has made its attainment reasonably difficult. Such are the handicaps that many a temporary storm, of sufficient violence to upset the domestic boat, is lulled and the survivors chart new seas. The marriage relation, in contemplation of California law, “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”. 6 R.C.L. 772. Corroboration of the complainant's grievance is indispensable; finality of the decree is deferred for a year and now a process of conciliation has been introduced when, as here, children are involved, aiming to defeat divorce by a forgiveness of the offender and by a more intimate knowledge on the part of both of the one's rights and of the other's weakness.

It was this policy of California's sovereignty that was to be contravened by plaintiff's promise and her conformance with the conditions prescribed by decedent in requiring plaintiff to be divorced in Nevada. After remaining in Nevada for the limited period, she procured her decree readily. Believing her judgment to be valid, she returned to her California home where she might have attempted to celebrate another marriage at once, despite the law of this state which would have barred her march to the hymeneal altar for a year, had she prosecuted to a successful judgment in Los Angeles county her cause against her former spouse.

Her act in thus seeking her divorce in Reno being clearly a contemptuous avoidance of the public policy of this state of her home, it rendered her promise to decedent abhorrent to the law and wholly insufficient to support decedent's promise of lifelong support. Wood v. Estate of Wood, 137 Cal. 148, 149, 69 P. 981. Neither the answer of her husband nor any waiver or stipulation on his part could have conferred power upon the Nevada court to award her a valid decree. Estate of McNutt, Cal.App., 98 P.2d 253. Her only means of gaining a legal domicile there was by a sincere intention to abandon California and not to return and by establishing in good faith her residence in Nevada with the intention of permanently residing there. Ryder v. Ryder, 2 Cal.App.2d 426, 37 P.2d 1069. When she failed to do this, she defrauded the courts of Nevada.

Basing her action for recovery here upon a contract which contempted the public policy of California and affronted its laws, she lays a false predicate for recovery. Having presented an agreement to violate the laws of Nevada and a design to defraud its courts, she is entitled to no relief. “Courts refuse all relief to one who asks compensation for the doing of an act which is conclusively presumed to be hurtful to public interests or morals.” Berka v. Woodward, 125 Cal. 119, at page 125, 57 P. 777, at page 779, 45 L.R.A. 420, 73 Am.St.Rep. 31. “No court of justice can in its nature be made the handmaid of iniquity.” Bank of United States, v. Owens, 2 Pet. 527, 538, 7 L.Ed. 508. “Whenever the illegality appears * the disclosure is fatal to the case. * Wherever the contamination reaches, it destroys. * the law will not lend its support to a claim founded upon its violation.” Coppell v. Hall, 7 Wall. 542, 558, 19 L.Ed. 244. “Nor in such cases does it matter whether the contract has been partially * performed, or whether the consideration has passed or not. * ‘If the plaintiff cannot open his case without showing that he has broken the law, the court will not assist him, whatever his claim in justice may be upon the defendant.’ * no court shall lend its aid to a man who grounds his action upon an immoral or illegal act.” Berka v. Woodward, supra.

In view of our sentiments as to the illegality of the contract sued upon, we deem it unnecessary to discuss the other assignments. The judgment is, therefore, reversed with instructions to dismiss the action.

MOORE, Presiding Justice.

I concur: WOOD, J. I concur in the judgment: McCOMB, J.