152 Minn. 189 | Minn. | 1922
Lead Opinion
Plaintiff and defendant were married February 22, 1913, at London, England. Thereafter and until October 7, 1914, they lived abroad except for a few months when they were in Minneapolis. Defendant was born and had always lived in England. Plaintiff was born and lived in Minneapolis. He is 60 years old. Defendant is 20 years younger. In October, 1914, they were staying in London. On October 7 plaintiff left to return to the United States. He has lived in Minneapolis ever since, while defendant has continued to live in London. Before leaving England, plaintiff wrote a note to defendant’s solicitor, stating that he had instructed his agent at Minneapolis to place certain sums of money monthly to defendant’s credit in a Minneapolis bank and that such sums represented one-half of his net income. In September, 1915, he gave her an
After July 1, 1918, plaintiff was bound to pay defendant for her support a sum equal to one-half of his net annual income, to be determined by deducting taxes, interest on mortgages, fire insurance premiums, disbursements for repairs and commissions for the renewal of mortgages upon his real estate, from the gross rentals, gains and profits of all the real estate he then owned or thereafter acquired. Payments were to be made in equal monthly instalments at the office of her attorney. At least 60 days prior to the first day of July in each year, plaintiff was to furnish a statement showing the receipts and disbursements above mentioned. He was to pay defendant’s attorney’s fees and expenses incurred by reason of his failure to' make agreed payments and also attorney’s fees in connection with the making of the contract. In the event of a sale of any or all of his real estate, one-half of the net proceeds were to be placed in the hands of a trustee and the net income thereof paid to defendant during the term of her life. If she outlived the plaintiff, the trust was to terminate at his death and she was to receive the whole of the trust fund. In consideration of these undertakings, defendant released plaintiff from all other claims for support she might have upon him. It was stipulated that none of the provisions of the contract should affect the rights of the parties in plaintiff’s real estate. An important clause in the contract read thus:
“The terms of this agreement shall be for such period of years as the parties may live separate and apart and until by mutual consent this agreement shall terminate and until they mutually agree to live together again.”
In our opinion this appeal is virtually determined by the answer to the following question: What was the effect on the contract of plaintiff’s request that defendant come to Minneapolis to live with him as Ms wife? If this were an ordinary commercial contract, plaintiff’s obligation would continue until defendant released him therefrom. Should a different rule be applied to a contract between husband and wife for the separate maintenance of the wife?
There can be no dou'bt that such contracts, at least when entered into after a separation has taken place, are perfectly valid. This is so well settled that citation of authority is needless. The cases are collated in Tiffany, Dom. Rel. p. 238; Schouler, Dom. Rel. p. 1554; Williston, Contracts p. 3042; 9 R. C. L. p. 524. We have then a valid contract into which it is proposed to read a condition not expressed in the language of the instrument. This condition, it is said, is one which the law attaches because of the interest of society in the faithful observance of the obligations of the marriage contract by the parties thereto. But the law is powerless to compel husband and wife to live together when they have determined to live apart. All that the courts can do is to refrain from encouraging separations by frowning on every arrangement designed to facilitate divorce. The policy of tMs court has been repeatedly stated. Adams v. Adams, 25 Minn. 72; Roll v. Roll, 51 Minn. 353, 53 N. W. 716;
Devine v. Devine, 89 N. J. Eq. 51, 104 Atl. 370, lends some support to plaintiff’s contention that such a request relieves the husband from his obligation. In that case, it was said [at page 55]:
“By policy of the law the period for which they thus contract touching their separation is limited to the period of their future mutual assent to live apart. Accordingly, in the absence of wrongdoing on the husband’s part, he may require his wife’s return to his bed and board, and her refusal will not only constitute her an obstinate deserter, but will deny to her any right to support from him, notwithstanding the existence of an agreement wherein they have mutually stipulated to live apart.”
The contention is also supported to some extent by Carl v. Carl, 166 N. Y. Supp. 961.
Daniels v. Benedict, 97 Fed. 367, 38 C. C. A. 592; Dennis v. Perkins, 88 Kan. 428, 129 Pac. 165, 43 L. R. A. (N. S.) 1219; Galusha v. Galusha, 116 N. Y. 635, 22 N. E. 1114, 6 L. R. A. 487, 15 Am. St. 458, and Sargent v. Sargent, 106 Cal. 541, 39 Pac. 931, point to a different conclusion, and Calkins v. Long, (N. Y.) 22 Barb. 97, cited in Carl v. Carl, supra, and in Roll v. Roll, supra, suggests a dis
Hertz v. Hertz, 136 Minn. 188,161 N. W. 402, applies this doctrine to a similar contract in considering the effect of a decree of divorce obtained by the husband.
In our examination of the authorities, we have found no suggestion that a contract containing a clause substantially like that quoted in the statement of facts should continue in effect only so long as the husband does not require the wife to return to him. In this connection, it should be observed that all the authorities, in discussing the question, assume that the husband’s request was made in good faith and was the expression of a sincere desire for a reconciliation. In the present case, the findings are that it does not clearly appear that the request was made in good faith; that it was open to the suspicion of being selfserving and intended to terminate the contract. It was also found that the evidence as a whole failed to show that during the years of their separation the plaintiff really desired his wife to live with him. In view of these findings, plaintiff is hardly in a position to assert that defendant is an obstinate deserter and to invoke the rule he asks us to apply on the authority of Devine v. Devine. It is a firmly established principle of the law of divorce that separation by mutual consent does not constitute desertion. After such a separation has occurred, the husband must attempt in good faith to effect a reconciliation before he may charge the wife with desertion. 19 C. J. 64, 65; 9 R. C. L. 358, 373. If plaintiff makes a reasonable and honest effort to induce defendant to return to him and she refuses, she may be charged with desertion and he may be in a position to maintain an action for divorce on that ground. It is probable that in such an action he
The remaining questions do not require extended discussion.
We are not concerned with the causes which led to the separation of these parties. When the contract was executed and for several years theretofore they lived separate and apart by mutual consent. Their separation is recited in the contract and their consent is found as a fact by the trial court.
The contract was not contrary to public policy and the release of plaintiff from all other claims for support was a sufficient consideration. Roll v. Roll, supra; Vanderburgh v. Vanderburgh, supra.
We do not sustain the contention that the contract should be canceled or defendant enjoined from enforcing it because its provisions are unreasonable or because plaintiff was improvident in entering into it. No fraud was practiced upon him and he was under no duress. True, defendant exacted his signature to the contract in exchange for her signature to the mortgage he was obliged to give, but they dealt at arm’s-length. He was a man of ripe experience, a lawyer by profession, and presumably capable of protecting his own interests. The provision for defendant’s support was generous, but not more so than that he voluntarily agreed to make when he left her in England in 1914. In all his subsequent dealings with her, he apparently adhered to. his original purpose of sharing his net income with her equally.
Section 7147, G. S. 1913, declares that no contract between husband and wife relative to the real estate of either, or any interest therein, shall be valid, but in relation to all other subjects either may contract with the other. The statute is applicable to a husband and wife who are living apart. Phillips v. Blaker, 68 Minn. 152, 70 N. W. 1082. The court found that when the contract was made plaintiff was the owner of certain real property in the city of
Whether tbe trust clause is valid or not need not be determined. Tbe question will not arise, unless tbe property is sold in defendant’s lifetime. Even though this provision be invalid, it does not affect tbe validity of other portions of tbe contract. They are not so interwoven that if one is invalid tbe entire contract becomes a nullity. Hamilton v. Hector, L. R. 13 Eq. 511.
It was proper to allow attorneys’ fees to defendant without proof of tbe value of her attorneys’ service. Tbe court might determine tbe value from its own experience and tbe circumstances of tbe case as disclosed by tbe record. Kingsley v. Anderson, 103 Minn. 510, 115 N. W. 642, 116 N. W. 112.
Order affirmed.
Dissenting Opinion
(dissenting.)
I dissent from tbe conclusion reached.