77 N.W. 594 | N.D. | 1898
In 1895 the plaintiff brought an action in the District Court of Cass county to obtain a decree of divorce from the bonds of matrimony then and theretofore existing between plaintiff and defendant. The cause of action, as set forth in the complaint, was cruel and inhuman treatment. The defendant appeared and answered, denying all cruel and inhuman treatment on her part. On September 7, 1895, the parries, by their attorneys, entered into a stipulation as follows: “The plaintiff and defendant in the above-entitled action hereby waive findings of fact and conclusions of law upon the trial therein; and it is further stipulated that it may be ordered and decreed in said cause that the said plaintiff shall pay to.the said defendant on the 1st day of each and every month, commencing with the month of November, 1895, the sum of thirty dollars ($30), during the remainer of said defendant’s life, or so long as said defendant shall remain unmarried, and, further, that the said' plaintiff shall care for, maintain, support, and educate the said minor child, C. Edward Glynn, issue of said marriage. And it is further stipulated that said action may be tried on the 7th day of September, 1893, and decree ordered therein on that date.” On the same day tthe Court made an order for judgment and decree in the following language: “This cause coming on to be heard on the 7th day of September, 1893, the respective parties having stipulated that the same shall be heard upon that date, upon the complaint of the plaintiff, and the answer of the defendant, and the evidence of the plaintiff and his witnesses, adduced on the part of the plaintiff, plaintiff being represented by Newman, Spalding & Phelps, his attorneys, and present in person, and defendant being represented by Ered B. Morrill, Esq., her duly-authorized attorney, and said defendant having made a general appearance in said action by said Fred B. Morrill, and the Court thereby having acquired jurisdiction of the subject-matter in controversy and of the defendant, and the Court having duly considered the evidence adduced, and having found all the allegations in said complaint sustained by competent evidence, and the respective parties having waived findings of fact and conclusions of law, and the respective parties having stipulated that an order be entered in said cause directing that the plaintiff pay to the defendant the sum of thirty dollars ($30) on the 1st day of each and every month, commencing with the month of November, 1895, during the remainder of her life, or so long as she shall remain unmarried, and, further, that the said plaintiff shall provide for the proper maintenance and
We do not -understand that any imprisonment was ordered by reason of plaintiff’s failure to maintain, fare for, and educate his minor son, although the Court adjudges him in contempt upon that ground, also. Even in this the Court was clearly wrong. First, it does not appear that plaintiff has not fully provided for his son. The lad was 19 years old when these contempt proceedings were instituted. He had been attending an academy in Vermont. The father 'wrote him that he would pay his expenses, if he. could, and there is nothing to show that he has not done so. True, he has not sent the money to the son, but that was not necessary. But,
Appellant contends that the amount specified in.the decree to be paid by plaintiff to defendant is in no sense of the word alimony; that it is, in effect, a money judgment on contract, possessing no greater sacredness, and enforceable in no other manner, than an ordinary money judgment upon contract. After a very careful consideration of the subject, we reach the conclusion that this contention must be sustained. But, before stating the reasons which lead us to this conclusion, We note that counsel for respondent, and the Court below, seem to have fallen into the error of regarding the appellant as seeking to evade the terms of the judgment, and practically demanding a modification thereof. The case of State v. Jamison (Minn.) 72 N. W. Rep. 451, is cited in support of the ruling below. In that case a decree of divorce had been granted in favor of the wife for the fault of the husband, and the decree provided that the husband should pay the wife a certain monthly sum as alimony. He failed to pay, and was imprisoned on contempt proceedings. On review of those proceedings he contended that the judgment against him was void, because the judgment on its face showed that the defendant had no estate, real or personal, but that his ability .to pay arose from the fact that he was receiving a salary; while the Supreme Court of that state had held that alimony could not exceed one-third of the estate, real and personal, of the defendant. The Court said that was simply an error, and did not render the judgment void, and the fact that the error appeared in the judgment
A court of equity has no more worthy duty to perform than to force a derelict husband and father to support his wife and children. That burden both the common and statute law place upon, him, and it is in the interests of a sound public policy, in the interests of morality, in the interests of the preservation of the family relation, which is the basis of all good government, that he should not be permitted to evade or disregard this burden. It is a sacred duty that is cast upon him, and in a proper case the Court should exercise all the powers permitted to it to enforce such duty. Nor can the husband, once the burden has been assumed, by any act of his own disencumber himself. At the same time, if he be faithless to his marital duties and obligations, the law will not compel the injured wife to live with him. She may rid herself of the incubus of his companionship, and yet retain the right to. support, and this because he is the party who has broken the marriage contract. On the other hand, if the wife be guilty of that conduct which the law says forfeits her rights and privileges as a wife, when, in a proper casé, this judgment of the law is pronounced by the court, she loses all her rights as a wife, including her right to 'support. The law lifts that burden from the husband. No responsibility in that di
Since, then, neither at common law nor under our statute was the respondent entitled, as a matter of law, to any support from the appellant, we are not to presume that the Court made the allowance by virtue of his power, under the law and the facts, to grant a divorce; if the record presents any other sufficient reason for that provision in the decree. When we turn to the order for the decree, we find that the Court studiously avoided placing the provision upon any legal right in respondent. The action was based upon the misconduct of the wife, which was set forth in detail in the complaint, confessedly sufficient to bring it within the statute. This misconduct the wife denied. But the Court recites that all the allegations of the complaint were sustained by the evidence, thus forever foreclosing respondent’s right to any allowance under the facts. The Court immediately adds, in effect, that inasmuch as plaintiff had by stipulation in writing agreed to pay to defendant the sum of $30 per month, and had agreed that such provision might be made in the decree it was so ordered. In other words, the effect of the order was to declare that the law had relieved the plaintiff of all duty to support the defendant, but he had agreed to pay her a certain sum and therefore the Court would decree such payment. But what was that more than an order on contract? The parties were thenceforth strangers, as absolutely as though they never had met. Every right and obligation under or by virtue of the marriage relation had been swept away. The right to the allowance rested on the naked contract. If it be claimed that the appellant was forced into this stipulation in order to obtain his divorce, then the agreement, being entirely unexecuted, and being in furtherance of, the divorce, is void. Speck v. Dausman, 7 Mo. App. 165; Seeley’s Appeal, 56 Conn. 202, 14 Atl. Rep. 291; Jordon v. Westerman, 62 Mich. 170, 28 N. W. 826. We are unable to see how that can aid respondent. It may be too late now for appellant to avoid the contract. But, be that as it may, if the contract be void it does not change respondent’s legal rights. It does not entitle her to that to which the record shows she was not. entitled in the absence of the contract. View it as we may, if she have any rights here, they must rest for their basis upon that contract. Embodying that contract in the decree could not change its essential nature.
It cannot be claimed that this appellant can be imprisoned for debt in this case. Section 15, State Const., limits such imprisonment to