Maxwell v. Boyd

123 Mo. App. 334 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts). — That contracts of separation between husband and wife are against public policy, and. are non-enforceable at law or in equity, is a well-settled doctrine; the plaintiff concedes as much. But the suit is not between the husband and wife on the contract, nor to enforce any provision of the contract which would inure to the profit or pecuniary advantage of the wife. The defendant occupies this position: He surrendered the care and custody of his infant child to another and contracted to pay to a third person, as trustee, the sum of fifty dollars per annum for the support of his child. He contracted to do what both the laws of nature and of the land say he should do, and what the laws of the land, in a proper case, will compel him to do. Now can it be, that for the reason he selected his wife, with whom he agreed to and does live separate, as the custodian of his child, he is relieved from doing what he ought to do and contracted to do? We think not. We think that while so much of the contract as provides for the separation of defendant and his wife is void, that part which obliges him to pay fifty dollars per annum for the support of his child is binding on him during the child’s minority, i‘f he permits the conditions to continue which he not only assented to, but brought about by his own act and has subsequently ratified by successive payments to the trustee for the child. The agreement as to the child has none of the vitiating elements of a contract of separation between husband and wife. This view is supported by the case of Meyer v. Kuechler, 10 Mo. App. 371. The defendant could not relieve himself of his obligation to support his child, by agreeing to live separate from his'wife and by giving her its custody. [Craig v. Donnelly, 28 Mo. App. 1. c. 317.] He could not do this by obtaining a divorce from his wife and leaving the custody of his child with his divorced wife. [Rankin v. Rankin, 83 Mo. App. 335.] He did not attempt to evade his obligation to support the child when he entered into the contract, but now sets up> as a special defense, that for the reason his wife has removed from the State, taking the child with her, has obtained a divorce from him and remarried, he is relieved from the obligation of his contract to support his child. None of these things the wife has done are prohibited by the contract, and even if they were, they were not the acts of the child, nor of the trustee and neither are responsible for them. Nor does the fact that his wife has procured a divorce and remarried relieve defendant of the obligation he entered into with plaintiff, as trustee, to pay fifty dollars per annum for.his child’s support.

The judgment is affirmed.

All concur.