Kistler v. Kistler

141 Wis. 491 | Wis. | 1910

Lead Opinion

WiNsnow, C. J.

There are two questions in the case: First What was the effect of the remarriage on the judgment for division of property in the first divorce action? Second. Was that judgment paid and.satisfied by the stipulation made, in the second action and the payment of the $300 thereunder ?

1. The judgment for $1,000 in the first action is confused and inaccurate because it describes that sum as and for “permanent alimony and division of property,” whereas it cannot *493be both. It must, however, be construed as a division of property. Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 198. So construing it, the result necessarily follows that it was a final adjudication, not open to revision after the term at which it was rendered, and became the separate estate of the plaintiff. Being her separate estate, it continued to be such after her remarriage to the defendant, and was manifestly unaffected thereby. Sec. 2341, Stats. (1898). Had it been a judgment for alimony proper, i. e. support payable periodically, remarriage of the wife, even to a third person, would probably justify the court in reducing or taking away the provision entirely. 2 Bishop, Mar., Div. & Sep. § 1058; 14 Cyc. 787, and cases cited in note 24. But, as we have seen, a judgment for division of the property is final, conclusive, and not .open to change after the term at which it is rendered.

2. The judgment not being affected by the remarriage, was it. satisfied by the stipulation ? This question must on principle be answered in the negative. This court has said, in accordance with the prevailing rule of law, that “agreements promotive of marriage are valid, and those in aid of separation and divorce are void.” Baum v. Baum, 109 Wis. 47, 85 N. W. 122; Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690. The stipulation in question was an agreement in aid of divorce. The expressed consideration for the agreement to pay the $300 was the agreement by plaintiff to prosecute an action for divorce. While there is no direct agreement on defendant’s part to abstain from defending the divorce action, it is very evident that the object and purpose of the agreement was that plaintiff should diligently prosecute her suit for divorce and receive from defendant $300 for so doing. This must be considered an agreement having for its object the facilitating of the procurement of a divorce and hence void. 15 Am. & Eng. Ency. of Law (2d ed.) 956. If the agreement to pay the $300 was void, the agreement by plaintiff that *494such sum should he accepted in satisfaction of all claims for alimony is necessarily void, because they are both parts of the same transaction and so woven together as to be inseparable.

By the Court. — Order affirmed.





Dissenting Opinion

MARSHALL, J.

(dissenting). Irrespective of whether the agreement was of a character rendering it void because pro-motive of separation between man and wife, I cannot concur in the result.

Without expressly dissenting from the conclusion that the agreement should be classed as pernicious, it seems there is good reason for holding the real intention of the parties to have been to deal with their property matters in view of a pending controversy in which a judicial separation was inevitable. Actual separation had already taken place. An action for divorce was pending. The defendant, evidently realizing that he had no defense, and that his wife had and would prove a cause of action, attempted to make and was successful in making an amicable settlement as to property. That the parties did not intend anything more, is evidenced from the fact that the trial court so considered the matter and disposed of the case, in all respects disregardful of the agreement as to the separation.

There is an elementary rule that if, looking at the language of a contract or its effects and consequences, in view of all the circumstances under which it was made, it will reasonably admit of a construction rendering it valid, that should be adopted rather than one which will render it void. Such rule is particularly applicable when the latter construction would result in holding the parties to the contract up to infamy, as having violated the moral or written or unwritten law. It has been applied in such a case as this. Paul v. Paul, 71 Ill App. 671.

In that case in the terms of the settlement was one that the appellee should file a bill for a divorce from her husband, *495■which, he would not defend, and that-upon the bill a decree should be entered against him, with a gross sum for alimony. Yet from other portions of the agreement and all the cir-•cumstanees, the court reached the conclusion that the entire contract would reasonably admit of a construction that the part on the subject of alimony was independent of the subsc-■quent divorce, and so adopted it, considering, under all the circumstances, that any other result would be so inequitable that no court would allow it if it could be avoided.

If the contract was really one for or to promote a divorce, it was a fraud on the court and might result in most disastrous consequences to the parties who have relied on the judgment of separation as valid. If the court had supposed it was such a contract, it would have doubtless ended the proceedings by dismissing plaintiff’s complaint. In this proceeding the trial court did not pass upon that matter, but decided the case upon the question of fact as to whether the parties, by the contract, intended to settle the former money judgment. Mere contracts for the division of property, in contemplation of a divorce, entered into before the commencement of the action, or pending it, are valid. 1 Nelson, Divorce & Sep. § 509.

This case seems unlike Baum v. Bwum, 109 Wis. 47, 85 N. W. 122, where there was an agreement entered into for a separation more in contemplation of preventing a divorce than •otherwise, and unlike Oppenheimer v. Collins, 115 Wis. 288, 91 N. W. 690, where there was an agreement upon a consideration to withdraw an action for a divorce and continue marital . relations.

We should confess, in passing, that the contract was carelessly drawn, in that it contained some language appropriate to an agreement to promote obtaining a divorce, and so did the ■contract pursuant to which the allowance of $1,000 was made in the first action. There the parties, in terms, stipulated for a “judgment for a divorce on her complaint as demanded -without further notice.” But the court seems, in view of the *496whole contract and nnder all the circumstances, to have construed the paper as only dealing with the property matter, and the case proceeded accordingly, no attention being paid to the-stipulation for judgment.

. On the question of fact as to whether the former judgment was settled in the last transaction, it being included by mutual intention, as it was in this appropriate language: “To accept the sum of three hundred dollars as alimony, and further' agrees to not ask for or to demand any further sum or sums whatever,” the question on which the judgment turned in the-court below, this court has not expressed an opinion. That the parties intended to cover everything seems to be conclusively shown by their own practical construction of their agreement. Full payment was made under the second agreement and for seven years thereafter respondent made no claim under the first judgment in question, though it is as certain as-anything can well be that she would have made such claim had she not supposed such judgment was settled. After the lapse of many years and the matter being called to her attention, she said she supposed the judgment was settled in the second transaction, and all her subsequent conduct corroborates that.. Furthermore, evidence of what occurred when the second contract was made, seems to leave no reasonable do-ubt about the-matter.

If I am wrong in the foregoing, in that there is some doubt, it seems that, since the respondent received the $300, appellant thinking, as he must, that respondent regarded the payment as ending his personal relations with her in every way, and she having given no indication but that she so considered it for many years, she should be held to have acquiesced in appellant’s view, if not to be estopped from claiming to the contrary, either of which, acquiescence or estoppel, would be sufficient to entitle appellant to have the cloud upon the title to his land, created by the judgment, removed. I think appellant should prevail.