34 Colo. 369 | Colo. | 1905
delivered the opinion of the court.
The facts pertinent to a decision of this case are in brief as follows: On January 10, A. D. 1893, Calvin T. Ward, the appellant, commenced an action for divorce in the county court of Arapahoe county against Ella D. Ward (now Ella D. Goodrich), appellee, upon the ground of extreme cruelty. The appellee filed an answer containing counter charges, and asked for alimony, counsel fees and an allowance for the support of Sidney Athol Ward, the child of the parties, then two years of age. While this action was pending, and on the 17th day of June, A. D. 1893, the appellee commenced an action against appellant in the district court for the support and maintenance of herself and child. In this action
On the 19th of September, 1893, the parties entered into a written agreement reciting the foregoing facts, and providing, inter alia, that appellant should pay to the appellee the sum of $200 in cash and also pay and allow her the sum of $2.50 per week, payable monthly, for the support of the child until further order of the court, or until he should arrive at the age of fifteen years; and in consideration of such payments the appellant should be released and discharged from all of said orders for alimony and support of the child, and the writ of ne exeat should be vacated and discharged, and from all claims and demands that the appellee might have upon him by reason of their marriage, and from all claims for permanent or other alimony, and for the support of the child, other than that specified in the agreement; and it was further expressly provided that this agreement should in no way abridge, modify or suspend any rights which said parties might have to a divorce in either of said courts, or affect the proceedings in said county court action for divorce, or any right or defense which the appellee.might have against the appellant in that action.
In pursuance of this agreement, all orders against appellant above mentioned were vacated, and afterwards and on the 14th day of October, A. D. 1893, a decree of divorce was granted in favor of the appellant and the custody of the child awarded to him. Upon the signing of the agreement appellant paid appellee the $200 cash, and permitted the child to remain in appellee’s custody and continued the payment of the monthly installments for the support of the child, as provided in said agreement,
Judgment was rendered in favor of plaintiff for $508 and costs. From this judgment appellant prosecutes this appeal.
It was urged in the court below in support of a motion for judgment on the pleadings, and is insisted on here by counsel for appellant, that the contract sued on is void for want of proper consideration. The argument is, that since the only consideration on the part of the appellant is his promise to support his infant child — in other words, to do that which he was legally bound to do — it was not a sufficient consideration to support a promise, and therefore appellant’s promise cannot be enforced. Counsel labors under a misapprehension as to the application of the rule he invokes. While it is settled that the promising to' do, or the doing of, that which the promisor is already legally bound to do does not, as a rule, constitute a consideration for a reciprocal promise, or support a reciprocal undertaking given by the
It is also claimed that the agreement is void and against public policy. There is nothing in its terms that renders it obnoxious to this objection. The fact that it was entered into while the action for divorce was pending does not affect its validity, unless it can be said that it was its purpose or effect in some way to facilitate the granting of the divorce. That such was not its purpose is shown by the agreement itself, which expressly provides, “That this contract shall in no way abridge, modify or suspend any rights which the parties may have to a divorce or action for divorce, * * * or affect the proceedings in said county court action for divorce brought by said Calvin T. Ward against the said Ella D. Ward, and any right of defense which the said Ella D. Ward may have in said action against the said Calvin T. Ward.”
From the decree set out in appellant’s answer it appears that the case was regularly tried to a jury
This action does not involve the right to the custody of the child, as counsel for appellant seems to argue, but only the question as to whether, having placed the child in appellee’s care, his promise to pay the'stipulated price for its support can be en- • forced.
We think the court below was correct in holding that he is so liable, and the judgment is therefore affirmed. Affirmed.
Chief Justice Gabbert and Mr. Justice Bailey concur.