307 Mass. 96 | Mass. | 1940
On May 3, 1935, the present respondent secured a decree nisi for divorce from the present petitioner. The decree became absolute on November 3 of that year. It gave to the present respondent the custody of the two children of the parties, both children being then minors, but it made no mention of alimony. A few weeks before the decree nisi, under date of March 16, 1935, the parties had entered into a sealed agreement in which one Doherty was named as a third party or trustee. This agreement referred to the then pending' divorce proceeding, recited that the husband and wife had agreed upon all questions of alimony, maintenance and support, and provided that, if a divorce should be granted, the husband (the present petitioner) should pay to Doherty for the benefit of the wife (the present respondent) $300 a month as long as both husband and wife should live, which sum should be due and payable “independent of any decree of alimony awarded by the court,” and that the wife should give credit for any payment under the agreement upon such alimony as might be awarded. The agreement further provided that the wife would receive the monthly payments in full satisfaction of any present or future claims for alimony, maintenance or support. Other terms need not be stated. This agreement was brought to the attention of the court at the time of the entry of the decree nisi but was not incorporated in the decree. It appears that since the divorce the husband has remarried, and that his income has greatly diminished.
The present petition by the former husband alleges that one of the children has now reached his majority, and that “conditions have so changed” that the petitioner “is unable to carry out the terms of said agreement.” The sole prayers are that the court “consider the relation of the parties hereto in connection with their contract and such
No contention is made that the agreement was invalid when entered into. It belongs to a class of agreements the validity of which is well established. Bailey v. Dillon, 186 Mass. 244. Terkelsen v. Peterson, 216 Mass. 531. Aitchison v. Chamberlain, 243 Mass. 16, 21. French v. McAnarney, 290 Mass. 544, 547. O’Hara v. Donovan, 303 Mass. 393, 395. Its terms show that the parties intended that it should continue in effect after a decree of divorce. Compare Kerr v. Kerr, 236 Mass. 353. The decree does not mention alimony or incorporate the agreement and so could not have been accepted as a substitute for the husband’s contractual obligation. See Albee v. Wyman, 10 Gray, 222, 230. The agreement remains valid and may still be enforced by action at law after the decree. Welch v. Chapman, 296 Mass. 487.
We are aware of no sound theory upon which it can be held that the court has jurisdiction to modify the terms of a valid existing contract which arose solely through the voluntary act of the parties.
The petitioner leans heavily upon Wilson v. Caswell, 272 Mass. 297. See also Bradford v. Bradford, 296 Mass. 187; Kerr v. Kerr, 236 Mass. 353, 356; and Oakes v. Oakes, 266 Mass. 150, 152. In Wilson v. Caswell, at page 302, it was held that a husband and wife cannot by contract deprive the court of its jurisdiction over alimony “or of power to consider their relation in connection with their contract and all other facts material to the issues properly before it in providing for the maintenance of wife or minor children, although the exercise of its jurisdiction may change in some respects their situation as contemplated by the contract.” And in Oakes v. Oakes, at page 152, there is a dictum that the court may exercise its power to modify its decree although there is a contract. But these cases recognize that a binding contract has been made.. None of them suggests
A decree is to be entered dismissing the petition.
Ordered accordingly.
