75 P.2d 390 | Wyo. | 1938
On February 6, 1935, the plaintiff, Clara A. Rinehart, filed in the district court of Laramie County her petition for divorce against the defendant, Charles H. Rinehart. The parties will be referred to as in the case below. Plaintiff alleged that they were married on July 17, 1911; that four children were born to them, all of whom are of age except Edith, then sixteen years of age; that the defendant is guilty of cruel and inhuman treatment and has offered such indignities to the plaintiff as to render her condition intolerable; that the defendant is able-bodied and is capable of earning the sum of $287 to $315 per month. Plaintiff accordingly asked for a divorce and that she be awarded such alimony as to the court may seem just, including an attorney fee of $100. On the same day, the parties entered into a stipulation. Counsel for both parties stated at the time of the oral argument in this case that at that time the plaintiff was represented by counsel, and that defendant was not represented at all. The stipulation is as follows:
"It is hereby agreed by and between the parties hereto that the defendant will pay and the plaintiff will accept Sixty Dollars per month and the household and kitchen furniture in the house in full of all alimony, temporary and permanent, and that the plaintiff will *367 not hereafter claim or assert a claim to any sum in addition to the amount; this is in addition to any money that plaintiff has saved up to this time. The defendant will not claim any of said moneys. The defendant will pay the attorney fee and costs not to exceed Eighty-five Dollars.
"Dated this 6th day of February, 1935."
The defendant did not appear in the action, and on March 11, 1935, a default was entered against him, the plaintiff was decreed a divorce, attorney fees in the sum of $85, and alimony in the sum of $100 per month. At the next term of court, the defendant appeared and moved the court to vacate the decree. The application therefor was subsequently amended, and alleges the following facts: That on March 11, 1935, the decree above mentioned was rendered; that defendant defaulted and failed to answer, solely for the reason that a certain stipulation hereinabove mentioned was entered into and upon which he relied; that defendant also gave to the plaintiff the sum of approximately $500 in cash as well as all household goods, wares and equipment then owned by the parties, which property was worth not less than $500, and that plaintiff agreed to accept the property above mentioned and alimony in the sum of $60 per month; that he had and now has a good defense to the action and refrained from interposing it for the reason above mentioned; that it was the understanding that the stipulation would be submitted to the court and made a part of the record in the cause, and that defendant did not learn that this was not complied with until approximately two months after the entry of the decree; that from March to October, 1935, plaintiff accepted the sum of $60 per month in accordance with the stipulation, but that on December 10, 1935, plaintiff caused a garnishment to be issued upon the defendant's pay from the Union Pacific Railroad Company; that defendant had done everything in his power to make a success of the marriage *368 of the parties; that plaintiff for a number of years insisted upon living in the state of California and lived there for a year and a half prior to the last separation of the parties, and finally informed the defendant that she would refuse to live with him in Cheyenne; that the defendant has been employed by the Union Pacific Company in Cheyenne for the past twenty years, and that it was impossible for him to go to California; that defendant is unable to state why the terms of the stipulation were not incorporated in the decree and that William C. Kinkead, attorney, who handled the matter, is now deceased; that the property settlement and alimony embodied in the stipulation was a fair and equitable settlement between the parties in the light of the insistence on the part of the plaintiff to live in the state of California, and in the light of the money and other property given to her at the time of her departure; that the plaintiff left for California on March 11, 1935, the date on which the decree was granted, and has ever since resided in that state; that the two older children of the parties reside with her, and are paying board and room to the plaintiff and are contributing in some measure to her support and maintenance. Defendant accordingly asked that the decree of March 11, 1935, be modified so as to require the defendant to pay only the sum of $60 per month, in accordance with the stipulation, or that the decree be vacated and the defendant be given an opportunity to interpose an answer in the suit. The plaintiff demurred to the application, and this demurrer was sustained. From this ruling of the court an appeal has been taken to this court. It may be mentioned in this connection that defendant also filed in said court a petition to modify the decree upon another and a second ground; namely, on account of the changed circumstances of the defendant, alleging that he is now receiving $65 a month less than he received at the time of the decree. That application *369 was also heard, the court reducing the alimony of $100 per month to $85 per month.
The question in this case is to what effect the contract entered into between the parties had — that is to say, whether the court had a right to ignore it and award alimony in excess of the amount provided in the contract, and whether the court erred in sustaining the demurrer filed herein. It is laid down in 1 R.C.L. 925 that a husband and wife, if they have been separated, or contemplate immediate separation, and in the absence of collusion as to a divorce, may settle their property rights, including the amount which the husband is to pay as alimony. It is said in Galusha v. Galusha,
At common law, a wife was not bound by any contract which she might enter into with her husband in regard to her future maintenance, unless, perchance, it was made through the intervention of a trustee. Winter v. Winter,
Let us now consider some cases in which the wife has been held bound by her contract. See generally 19 C.J. 250, Section 584. In the case of Galusha v. Galusha,
"We have, then, a valid tripartite agreement, and a subsequent judgment of divorce rendered, in an action wherein two of the parties to the agreement only are plaintiff and defendant. The plaintiff did not in her complaint ask, as a part of the relief, that the separation agreement be set aside. She did not allege that it had been obtained fraudulently, or by means of duress. In no way whatever was its validity attacked, or a foundation laid which would have empowered a court of equity to set it aside. The subsequent order of the general term, therefore, in directing such modification of the judgment of divorce as would terminate the force and legal effect of this valid separation agreement cannot be sustained. The authority conferred upon the court by the Code, to require the defendant to provide suitably for the support of the plaintiff as justice requires (Code Civ. Proc. § 1759), is not so broad and comprehensive as to admit of a construction conferring upon the court power to ignore all existing rules as to parties, pleadings and proof, and arbitrarily set aside a valid agreement, because in the judgment of the court one of the parties agreed to accept from the other a less sum of money than she ought.
"We must now consider briefly whether the trial court should have granted an allowance in addition to the sum which the parties had voluntarily agreed was sufficient for the support of the wife, and which both the wife and trustee covenanted to accept in full for her support and maintenance during her natural life. There are a number of cases where, notwithstanding a voluntary settlement by a husband upon his wife, the court has made an additional allowance, upon the ground that the settlement was inadequate for her support. 2 Bishop, Mar. Div., § 375, and cases cited. But our attention has not been called to a case in which the court has held that where the wife, by the intervention of a trustee, makes a valid agreement that the settlement is sufficient for her support, and indemnifies the husband against any further payment therefor, the court will make a further allowance while that agreement is in force. The statute authorizes the court, in *374 the final judgment dissolving the marriage, to require the defendant to provide suitably for the support of the plaintiff as justice requires, having regard to the circumstances of the respective parties. It directs this to be done because, upon the dissolution of the marriage relation, the legal obligation of the husband to support the wife ceases. But for the power thus conferred upon the court the result of the husband's misconduct would be to relieve him from the duty of supporting the wife whom he had wronged. But this authority to protect the wife in her means of support was not intended to take away from her the right to make such a settlement as she might deem best, for her support and maintenance. The law looks favorably upon and encourages settlements made outside of court, between parties to a controversy. If, as in this case, the parties have legal capacity to contract, the subject of settlement is lawful, and the contract, without fraud or duress, is properly and voluntarily executed, the court will not interfere. To hold otherwise would be not only to establish a rule in violation of well-settled principles, but, in effect, it would enable the court to disregard entirely settlements of this character, for, if the court can decree that the husband must pay more than the parties have agreed upon, it is difficult to see any reason why it may not adjudge that the sum stipulated is in excess of the wife's requirements, and decree that the husband contribute a smaller amount. The views expressed lead to the conclusion that the judgment appealed from should be modified by striking out the provision terminating the force and effect of the separation agreement, dated April 30, 1883. It should be further modified by striking out the provision allowing alimony, and, as thus modified, the judgment should be affirmed."
We might here mention incidentally that subsequently the contract mentioned in the foregoing case was attacked directly, and was set aside on account of fraud and duress. Galusha v. Galusha,
In the case of Winter v. Winter, supra — that case upholding a contract against the husband — the court stated of the wife that "she is the best judge of what she needs for her support, and the amount may be fixed and settled by an agreement made after actual separation, without violating any principle of law, or any statute now in existence." In the case of Cain v. Cain,
"I do not see how the alimony provision for the wife can be sustained. Such a contract is binding upon both parties, unless set aside or impeached, and that is so, though the marital relations between the parties are terminated by divorce. Galusha v. Galusha,
"The contract here was not made through the intervention of a trustee, but between the husband and wife directly. It is pleaded in the answer as a defense to the demand for alimony. It may be that if a case had been made, the contract could be set aside in this action without resorting to an independent action therefor; but we need not decide that question, as I think no case was made for setting it aside. It is undoubtedly true that a contract for the support of a wife may be set aside at her instance, upon grounds which would be insufficient to set aside a contract not of that character. Hungerford v. Hungerford,
"But here the only ground for setting it aside is that the provision made thereby for support of the wife is now inadequate. I think that alone is not sufficient. As was said by Judge Vann in the Winter Case:
"`She is the best judge of what she needs for her support, and the amount may be fixed and settled by an agreement made after the actual separation, without violating any principle of law or any statute now in existence.'"
In the case of Parsons v. Parsons, 23 Ky. L. 223, 62 S.W. 719, it appears that the husband and wife entered into a contract of separate maintenance. Thereafter the wife brought an action for divorce, which was granted. She also asked for alimony. The husband set up the contract as against the petition for alimony. The wife claimed that the contract was obtained by fraud, was signed by her in ignorance of her rights and that it was against public policy. The court, disposing of her claims, and upholding the contract, stated in part:
"There is no proof of fraud in the execution of the contract. Such agreements when fairly made, contravene no public policy and are not void. While the court will not suffer the wife to be overreached by the husband, or sustain a contract prejudicial to her, obtained by him while she is under his domination, this rule does *377 not apply where they are separated and are dealing at arm's length. There is nothing in the record to impeach this contract, and it is conclusive on the parties."
In the case of Gallemore v. Gallemore,
"According to the weight of authority, bona fide agreements relating to alimony or the adjustment of property rights between the husband and wife, though in contemplation of divorce, will be upheld, if not directly conducive to the procurement of a divorce. * * * Other provisions in this contract, when taken with the amendment thereto, relieve the parties each from the other from any responsibility for maintenance or support or from thereafter in any way participating in the division of the estate or property of each other, but we find nothing therein to promote or facilitate the procurement of a divorce. It is true that the parties thereto lived separate and apart after the execution of said contract, but it appears to have been deliberately entered into, and was entirely satisfactory to both parties at the time of execution. The evidence amply supports the finding of the chancellor. There was failure on the part of appellant (the wife) to show that the contract was procured from her by duress."
In the case of Melson v. Melson,
"The agreement of separation was valid as the agreed equivalent of future maintenance by the husband of the wife, although it was invalid as a contract providing for the relinquishment of the right and duty of cohabitation of the spouses. * * * On the * * * ground * * * that articles of separation when fully performed by the husband, bar her from any other form of maintenance than those agreed in the articles, the chancellor was in error in allowing the wife alimony. Nor should counsel fees for the wife have been allowed, as they were excluded by the terms of the contract." (A number of cases are cited.)
An instructive case herein seems to be that of Herrin v. Herrin, (Mont.)
"But we think it repugnant to sound principles of equity to permit one to profit by the provisions of such an agreement and then avoid its objectionable parts by the rule mentioned, and we therefor hold the contract severable. * * * The contract is, therefore, held to have been entered into for the purpose of facilitating a divorce, and as to that it is void as contrary to public policy, but as to the property settlement it is valid and binding upon both parties."
These cases, then, hold that a contract between husband and wife, such as entered into between the parties in this case, is binding on both of them, some of them specifically, and the others impliedly, holding that the court has no right to disregard it and make an allowance to the wife greater than that made in the contract. They do not specifically mention that the contract must be fair, from the standpoint of the amount involved, nor do they mention the contrary, except Cain v. Cain, supra. It may be, therefore, and for the purpose of this case we shall assume, that they are not inconsistent with the rule of fairness above mentioned, but may be harmonized therewith, and that they merely go, but they do go, to the extent of holding that unless it is shown and litigated at the time when alimony is granted that the contract is unfair, the court must follow it. We shall not attempt to determine what are the circumstances which should govern the court in saying that a contract is not fair, since the point has not been argued. We refer, however, to the cases mentioned at 30 C.J. 1060 to 1062, and to Melson v. Melson, supra, to Parsons v. Tracy,
To test the soundness of the rule of the cases from which we have just quoted, we may consider the cases dealing with the subject of presumption and burden of proof in cases in which the contract is claimed to be unfair. Most of the cases on the subject are collected in 30 C.J. 1061. They are not in harmony. In some *380
of them it is held that the burden to show that the contract is fair is on the husband. That is held on the theory that, as at common law, the wife is under the power and dominance of the husband, as in Dennison v. Dennison,
"The parties are presumably able to determine the needs of one and the ability of the other, and when they arrive at an adjustment of property rights, in the absence of evidence of unfairness, such adjustment is, and should be, usually accepted by the court."
In the case of Daniels v. Benedict, supra, Judge Sanborn, reviewing the subject at length, stated in part:
"It will not do to say that all contracts between husbands and wives * * * are ineffectual unless proved aliunde to be just and fair, because the effect of such a rule would be to practically disable parties occupying such relation from making contracts with each other. Agreements between parties in these relations are either presumptively valid or presumptively void. If the former, then the power of such parties to bargain, trade and agree with each other is plenary. If the latter, then their power to contract with each other is practically destroyed. No principle of equity, no rule of law or of morals, which occurs to us, require a decision that the confidential and fiduciary relations of life disable all who enter them from making agreements with each other, or stamp their mutual contracts with the presumption of fraud or invalidity. Such a preumption is unfounded in fact, and runs counter to the common knowledge and experience of men." *382
And in the California cases above mentioned, the court lays particular stress on the fact that, as in the case at bar, the parties were dealing with each other at arm's length.
The situation in this case, then, is this: The contract is presumed to be fair, just and equitable. The burden to show it otherwise is on the plaintiff. The court, accordingly, should not have disregarded it in the absence of such showing. Still, it had the power to do so. Was the defendant then justified in relying on the contract and make default in the case? It is held by the Kansas City Court of Appeals in Marshall v. Marshall, (Mo.App.)
"The plaintiff suggests that an agreement between the parties concerning alimony was not binding upon the court, citing Blair v. Blair,
This case is in line with and carries out the principle of the other cases from which we have heretofore quoted, and no less an opportunity than therein mentioned should be given to the defendant in this case.
The judgment appealed from herein is accordingly reversed, with direction to overrule the demurrer filed herein and for further proceedings not inconsistent with this opinion.
Reversed, with direction.
RINER and KIMBALL, JJ., concur.