No. 5001 | Wash. | Dec 20, 1904
The motion to dismiss this appeal seems to be without merit.
This action was commenced by appellant against respondent for a decree of divorce. The complaint alleged infidelity on the part of the wife, and adultery committed with the co-respondent, Thomas Madden, and divers and sundry other men not mentioned; pleaded a settlement of the community property intereste between, the appellant and respondent prior to the commencement of the action; asked that the community property, which was accorded to the appellant under the terms of the agreement, be decreed to be his, and asked to be awarded the care, custody, and control of Anna O., Lora L., Ruby A., and David A. Richardson, children of appellant and respondent, and that the respondent be awarded the care and custody of Iva J. Richardson, the youngest child of the appellant and respondent. The respective ages of these children were, Anna 0., fourteen years of age; David A., nine; Lora L., seven; Ruby A., three; and Iva J., seven months of age; all five of said children being then living.
The respondent answered, denying the allegations of adultery and misconduct on her part; and alleging, abuse on the part of the husband that became unbearable; that he was guilty of associating with disreputable women;
These parties were married in December, 1885, and lived together on their ranch until about October, 1902, at which time, it is insisted by the appellant, on account of the intimacy of respondent with Thomas Madden, they had some trouble, and respondent went to live at the town of Wilson Creek, where Madden lived, and where the appellant visited her from time to time, generally going down Saturday nights and remaining over Sunday with her, until the 12th day of March succeeding, being the 12th day of March, 1903. The court found, that the allegations made in the appellant’s complaint as to the commission of adultery by the respondent on the 17th day of March, 1903, had not been proven in the ease, and that the most that could be said was that the respondent may have acted in an imprudent and indiscreet manner; that, during the longer portion of the married life of the parties, appellant had neglected the respondent and had failed to show that treatment due a wife from her husband, and that at times his treatment had been such as to force the respondent to the conclusion that he cared nothing for her; that he indulged in calling her many vile names, and cursing and swearing at her and his children; that he was addicted to the use of
The appellant presents numerous assignments of error, principally in relation to the refusal of the court to admit testimony, and in exceptions to the findings of fact. It is not necessary to discuss these assignments in detail, for the whole transaction was presented to the court in such a way that it is not difficult to conclude what the exact situation was. The evidence is fairly conclusive that the respondent was guilty of adultery with the corespondent Madden, or at least that her actions were such as to reasonably lead the husband to so interpret them; and, if the husband himself were guiltless there might he some reason for his claim that he should he entitled to a larger portion of the community property, and entitled to the custody of the children. But there are other crimes which affect domestic felicity than that of adultery, and the reading of this record convinces us that the husband was largely responsible for the wayward course eventually pursued by the wife. Constant charges of infidelity, habitual application of vulgar epi
Trom an investigation of the record, we think the court was right in setting aside the agreement or settlement with reference 1x> the community property. It was contended by the respondent that the agreement was void, under the law, as being against public policy; but, while it was not a void agreement, it shows, by reference to the testimony in relation to the property generally, that it was not a fair agreement, the testimony of the wife being that it was an agreement which was forced upon her through threats and intimidation. This court has had this question under advisement in the case of Timm
“It is not per se a violation of the law’s policy, there•fore it is not necessarily nugatory, for the parties to a divorce suit to enter into an agreement as to what alimony shall be allowed,, how their property shall be divided, and the like, on the rendition of a decree for dissolution or separation. But if the contract is of a sort to stimulate the divorce, to discourage any defense, or in any way to -impose upon the court, it will be void; for example, it will be void if so framed as to have effect only on condition that divorce is granted without alimony. Hence practically, and almost and sometimes quite as a matter of law, an agreement of this sort should be laid before the judge, when, to an extent not readily definable, it will be ill if he dissents, and good if he approves.”
In that case a citation was also made from the supreme court of Iowa, in Martin v. Martin, 65 Iowa 255, 21 N. W. 595, to the following effect:
“The courts however will in every case scrutinize the transaction very closely, and the contract will not be enforced unless it appears to have been fairly entered into, and to be reasonably just and fair to the wife.” This court continuing says:
“We see no just reason why this equitable rule should not be applied to such agreements made during the pend-ency of divorce suits, as well as to- such contracts made in contemplation thereof. Purthermore, under our statutory provisions, Pierce’s Code, § 4637, Bal. Code, § 5723, these proceedings with reference to the adjustment of the property rights between the spouses are regulated and determined by action of the court in that regard, and not by agreement between the parties. The courts will not lend themselves to anything that will encourage or facilitate divorces, by being too ready to*279 recognize and enforce contracts between husband and wife adjusting their property rights, either before such proceedings are instituted or during their pendency.”
There was a very earnest effort made by the appellant to show that the respondent signed this agreement upon condition that no further action should be taken against Madden. This testimony, which was offered several times, was rejected by the court. But if it had been proven that such was the case, it would have been an additional reason why the agreement should have been held null and void.
The night before this agreement was made, the appellant, with one Doyle, a sort of detective, and two other men, each armed with a revolver, slipped down to the house where the respondent was living, with the intention of surprising Madden by finding him in intimate relations with respondent. They broke the panels of the door, stuck their lanterns in where they could see; and claimed to have seen Madden hastily dressing near the bed occupied by the respondent. The respondent testifies that they came in brandishing their revolvers; Madden claiming that, in the mean time, he had been sleeping on the floor in the front room, but, hearing that they were hunting for him, thought discretion was the better part of valor, retreated upstairs and jumped out of a window. Mr. Doyle took it upon himself to run around the house and fire three shots at him, as he retreated returning the fire. Recriminations were indulged in between the husband and wife, the party leaving and returning again in an hour or two; then, after more talk, leaving again. The next morning, according to the testimony of respondent, Doyle came to her house, told her that he was an officer, and had a warrant for her arrest, and that she had better make a settlement with the appel
Unfortunately, so far as the children are concerned, we are forced to the conclusion that neither of the parties ought to have the care and custody of children of tender age; but, as there seems to be no alternative in this case, we have concluded to award to the care, custody, and control of the father the three oldest children, viz., Anna O., David A., and Lora L.; and to the care, custody, and control of the mother, the two youngest children, viz., Euby A. and Iva J.
As to the division of the property, we are not satisfied that an equitable division was made. The testimony in relation to the value of the personal property is exceedingly meager. It would seem that it ought to have been more definite and certain; while there is no testimony at all in relation to the value of the large holdings ■of real estate. We judge, from what crops out in the record, that the court obtained some information relative to these values from outside sources, but this court ■ cannot be controlled by such supposed information.
We therefore remand this case to the lower court, affirming’ the decree with relation to the divorce — as
Fullerton, C. J., and Anders, Mount, and Hadley, JJ., concur.