167 P. 154 | Cal. | 1917
Differences had arisen between Ottillie K. Bowden, plaintiff herein, and Rolandus F. Bowden, defendant herein, which resulted in an action for divorce, commenced by the wife against her husband, in October, 1909. At the time they held community interests in property, real and personal. While this action was pending, on November 4, 1909, the spouses entered into an agreement whereunder the community property was divided between them. The wife agreed to dismiss the pending action for divorce and together they agreed as follows:
"The undersigned, Rolandus F. Bowden, does hereby promise to pay his wife, Ottillie K. Bowden, the sum of three thousand dollars, should he at any time in the future cruelly treat, abandon, desert or cease to live with the said Ottillie K. Bowden, as husband and wife, or do any other act which would be a cause for a divorce.
"The three thousand dollars to be due and payable on the date of any such cruel treatment, desertion or abandonment on the part of Rolandus F. Bowden of his wife to take place or when he should commit any act giving her cause for a divorce.
"Provided, however, that no part of this sum shall be paid to the said Ottillie K. Bowden should she cruelly treat, desert or abandon or cease to live with the said Rolandus F. Bowden or do any other action which would be a cause for a divorce."
Thereafter, on the thirteenth day of May, 1910, the wife commenced a second action for divorce against her husband upon the ground of cruelty. The husband defaulted, an interlocutory decree in favor of the wife was entered, and it became final on March 18, 1912. Thereafter, on February 13, 1913, the wife commenced this action, demanding payment of three thousand dollars under the written agreement above set forth. The husband answered, the cause was tried, judgment *713 was entered for plaintiff, and the husband has appealed.
Upon the appeal the single proposition urged is that a contract such as this is against the policy of our law under the decisions of this and other courts. The California cases upon which reliance is placed are Loveren v. Loveren,
Manifestly, then, these cases cannot be successfully invoked to defeat the contract here before us, for, precisely what, in its essence, is this contract? Postnuptial differences had arisen betweeen the spouses which had resulted in an action for divorce brought by the wife against the husband. They were the owners of community property, real and personal. The husband sought a reconciliation and it was accorded him. The law favors such reconciliation, unless it be effected upon terms expressly forbidden or upon terms expressly disapproved, or, in other words, unless the terms be against the express mandate of the law or against public policy. Did the wife in this contract surrender any of her marital rights? None whatever. Did she in any way make it easier for her husband to inflict on her any marital wrongs? Not in the least. Did she extend, actually or impliedly, any inducement to him to commit such wrongs, either upon the theory that she would get a divorce because of them, or that he would be less mulct financially than, saving for the contract, he would be (which is the Pereira case) if he did commit such wrongs? Nothing of this appears in the contract. In brief, what the contract does do is to reserve to the wife without impairment all her marital rights, to reserve to the husband without impairment all his marital rights, to waive upon the part of neither their legal or equitable rights for any wrong which either might commit against the marriage status, but simply to impose upon the husband the duty, in addition to that which the law imposes, of observing his marital vows and obligations, or, failing to do so, to pay to *715 the mistreated wife something in addition to that which the law would award her in her action based upon such mistreatment either for divorce or for separate maintenance. It is impossible to read this contract in any other light. So far from the consideration being base, it is worthy and commendable. It neither asks nor invites the husband to do a wrong. It endeavors to deter him from doing wrong by making him liable to a penalty in addition to that imposed by law if he does do wrong.
On principle, therefore, we hold that neither the consideration nor the purpose of this contract is base, but that both are worthy, and that whatever may be said touching the invalidity for lack of consideration only of such a contract, if it be an antenuptial contract, it is not without consideration where a wife has suffered such wrongs from her husband and has condoned his offenses, has resumed with him the marriage relation and re-established the marriage status, all of which the law favors, upon condition, not improperly imposed by virtue of sad experience, that he shall not again offend. Such a wife has found the legal obligation to be insufficient. It would indeed be a harsh rule which after such an experience should say that she may not invoke other aids in her efforts to induce her husband thereafter to remain true to his marriage vows. The cases that hold that an antenuptial agreement to this effect is without consideration are based upon the view that at the outset of the relationship the law itself imposes the prescribed duty upon both spouses, and that therefore there is no consideration where one spouse agrees that if he does offend in the future he will pay a penalty in addition to that which the law may exact. We need not discuss nor even collate these cases, as they are not addressed to the situation here before us. But, upon the other hand, cases which are addressed to the situation here presented are numerous, and overwhelmingly they uphold the validity of contracts such as this. It may be well to consider briefly a few of them. Thus in Terkelsen v.Peterson,
Under the conviction that enough has been said to establish the validity of this agreement and to render unnecessary any further discussion, the judgment and order appealed from are affirmed.
Lorigan, J., and Melvin, J., concurred. *719