201 Ky. 208 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
The parties to this litigation are husband and wife. The husband, appellant and plaintiff below, James B. Hoskins, filed this equity action in the Clay circuit court
No effort is or could be made to disturb the judgment of divorce; nor is it contended by plaintiff’s counsel that the evidence did not authorize it. 'On the contrary, it is at least tacitly assumed that the proof justified the court in rendering it, That assumption is fully justified by the
' 1. It will not be necessary in disposing of ground (1), to enter into an extended discussion of the law concerning “separation agreements” or “separation settlements.” Suffice it to say, that if the parties are already separated the agreement, if otherwise fair, will be upheld both in its adjustment of alimony, as well as the rights of the surviving spouse in the property of the other, should the marriage relation continue to exist. Likewise will the agreement be upheld when entered into before actual separation, if made in immediate contemplation thereof and there exist just grounds therefor. But, where.the parties are living together in amity and the agreement is made in prospect of a possible separation in the future, it is> void and will not be enforced. 9 Cyc. 520; 9 R. C. L. 524; Simpson v. Simpson, 4 Dana 140; McCrocklin v. McCrocklin, 2 B. M. 370, and Gaines’ Admr. v. Poor, 3 Met. star page 503.
In either case, however, the inducement forming the basis for the settlement is the actual or immediately contemplated separation, and if the actual separation ceases by reconciliation, or if the contemplated one never happens, the agreement becomes a nullity and is terminated. 9 R. C. L. 354; Schouler on Marriage and Divorce, vol. 2, sections 1312 and 1812; Knapp v. Knapp, 95 Mich. 474, 55 N. W. 353; Wright v. Wright, 127 N. W. (Mich.) 338, and other cases referred to in the Knapp opinion. The Wright case involved facts which, in all material respects, were the same as we have here. The parties became reconciled after the execution of the agreement, and cohabited together as man and wife, and the court said: ‘ ‘ The agreement to separate was therefore abrogated,” which necessarily included all of its terms, including those relating to maintenance or alimony for the wife. The general rule on the subject is thus stated in the reference to
2. But little time need be devoted to ground (2). Plaintiff owns three parcels of land worth in the aggregate, according to the proof, between five and seven thousand dollars. Up to and within about a year of the filing of this action he* had for many years been engaged in the logging business, and also as a dealer in cattle, and it is conclusively proven that he deposited considerable sums of money with various banks located within a radius of thirty or forty miles of his residence, and with one in Lexington, Ky., and another in Cincinnati, Ohio. It is likewise so proven that shortly before filing this action, he commenced to and did sell his horses, mules, cattle and other personalty, and that he necessarily had at the time of the submission ' cash or other intangible property amounting to between seven and twelve thousand dollars. The defendant owns'a stock of goods in a small store house where the parties live, which business she has owned and conducted since the reconciliation and from the proceeds of which she has supported in the main, not only plaintiff but also her five children, including supplying their clothing and paying for the greater part of their education, which was sufficient to enable each of them to obtain a first-class certificate to teach in the public schools. She has been faithful, dutiful and industrious amid all the cold, grouchy and inconsiderate conduct of her husband. The stock of goods owned by her was valued by the witnesses at from fifteen hundred to six
Wherefore, the judgment is affirmed.