Edleson v. Edleson

• Citation: 200 S.W. 625,179 Ky. 300
• Parties: EDLESON v. EDLESON.
• Decision Date: 15 February 1918
• Court: Court of Appeals of Kentucky

200 S.W. 625

179 Ky. 300

EDLESON v. EDLESON.

Court of Appeals of Kentucky.

February 15, 1918

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by Esther R. Edleson against Samuel A. Edleson, wherein defendant filed a counterclaim. From the judgment rendered defendant appeals. Affirmed in part and reversed in part.

Charles P. Johnson, of Louisville, for appellant.

Burwell K. Marshall, of Louisville, for appellee.

HURT J.

The appellant, Samuel A. Edleson, and the appellee, Esther R Edleson, were married in Louisville on February 19, 1899, and have since that time continued to reside there. A daughter Edith H. Edleson, and who is now 13 years of age, was born to them. On October 23, 1914, the appellant was the owner of two houses and the lots upon which they stood, and a parcel of unoccupied land, in the city of Louisville, and was also the owner of the business of a shoe merchant, in which he engaged. He was the joint owner with the appellee of a residence situated in Belgravia Court, of the value of between $6,000 and $7,000, and upon which there was a mortgage lien of over $2,000. The appellee was conducting a business as a milliner, in her name, as the proprietor connected with the department store of Kaufman-Straus Company. In September, 1914, they became estranged and ceased to live together as husband and wife. Appellant claimed that he was the owner of the millinery business conducted in the name of the appellee at Kaufman-Straus Company, which the appellee denied. The appellee claimed that she had paid for the house in Belgravia Court, which was jointly conveyed to her and appellant, and that in addition thereto that she had paid the family expenses, including those of appellant, for many years, and had furnished him money of her own, and that he had persistently refused to contribute to her support or that of her child, while, upon the other hand, he claimed that he had furnished her very large sums of money, which she had spent in extravagance of dress and otherwise, and had paid all that had been paid for the Belgravia Court residence and all of its contents, and had largely paid for the millinery business, which was conducted in her name.

On the 23d day of October, 1914, with the assistance and advice of counsel, they entered into a written agreement, which both signed, and it seems to have been fairly and understandingly made between them, and now neither makes any claim that the contract was not fairly understood and agreed upon, but each one charges the other with having violated and refused to keep it. The writing contains 10 separate articles, and the preamble to it is as follows:

"Agreement.

This agreement made and entered into this 23d day of October, 1914, by and between Samuel A. Edleson, party of the first part, and Esther R. Edleson, of Louisville, Ky. party of the second part, witnesseth: That whereas, said first and second parties are husband and wife and have heretofore ceased to live together, and irreconcilable difference having arisen, which renders it impossible for them to hereafter live together as husband and wife; and whereas, they have as issue of said marriage a child named Edith H. Edleson, age twelve years; and whereas, the said parties have agreed among themselves on a settlement of all property rights and differences existing between them, and the welfare of the child, and for the purpose of settling all of their differences, and, in consideration of the premises, they have entered into the following agreement with each other, to wit:"

It is unnecessary to set out the various articles of the agreement in words, but the substance is to the effect that the appellee agreed to give up claim to and turn over to the appellant all of the household furniture, which before their separation was in the the house in Belgravia Court, except certain knives and forks and a silver tea set, and such articles as had been made as presents by friends to her. She further agreed to pay to him the sum of $500, and he agreed within 10 days to abandon the house in Belgravia Court, and to remove all of his furniture therefrom, and to execute a deed of conveyance to Samuel Lipnick, the brother-in-law of the appellee, by which he would convey to him his interest in the property for her benefit, and would deliver to her all letters, telegrams, photographs, and private papers and correspondence which were in his possession and belonged to her. She agreed to waive all claims which she then had or would in the future have against appellant for alimony or maintenance for herself or for the maintenance of their child, and to sign any deed or other papers that the appellant requested her to sign, and which would not impose any personal liability upon her, affecting any real estate that he owned; and he agreed to sign any paper that was necessary for him to sign and upon her request affecting any real estate that she then or might thereafter own or in any way affecting her business, provided it did not impose any personal liability upon him. She also agreed, upon request, to surrender any rights that she might have as a beneficiary in a policy of life insurance for $2,000 on his life, in the New England Life Insurance Company, and in which she was named as beneficiary, and permit him to choose another beneficiary, and also agreed that he might change the beneficiary in a benefit certificate for $1,000 held by him in the Knights and Ladies of Security, and in which she was named as beneficiary, and make the certificate payable to such beneficiary as he might select. She also agreed to surrender any right, title, or interest that she had as a beneficiary in a policy of insurance for $1,000 on the life of her father, Isaac Manitsky, the premiums upon which had been paid by appellant, and to permit him to obtain the cash surrender value of the policy or other benefit of it. They mutually agreed that these undertakings were a full satisfaction, settlement, and compromise of all claims and demands which either held against the other, or against any business in which either might be interested, or which was owned by the other, and in full settlement and satisfaction of any claims that he might have against any person or persons connected with her, and that, in the event of the death of either of them before there should be a judgment of divorce, the one surviving waived all claims to curtesy, dower, or distributable share in either the real or personal estate owned by the other, and that neither of them would interfere with, molest, or annoy the other at any time or place. It was further agreed that she should have the custody, control of, nurture, and education of their child, Edith, and that she should bear the expense of the education and maintenance of the child, and that she would not remove her out of the city of Lousville except on a temporary visit, nor longer than 60 days at any time, and would not do anything to create a lack of affection on the part of the child toward him. The sixth article of the contract was as follows:

"It is further agreed between the parties hereto that at the expiration of one year from date hereof that either the first or second party may institute an action for absolute divorce against the other party, on the ground of one year's abandonment, and whichever party institutes said action for divorce the other party against whom said action is instituted agrees not to make any defense thereto, but it is distinctly understood, however, that in the event either the first or second party institutes such action, that the second party shall pay the costs thereof and attorney's fees, not exceeding, however, the sum of fifty dollars, and shall also obtain a divorce according to the Jewish custom."

It seems that all the undertakings in this contract, with reference to the property rights of the parties, were carried out and executed, except the execution of the necessary writing by appellee to enable the appellant to secure the cash surrender value of the policy of insurance upon the life of Isaac Manitsky, and which is alleged to have been, at the time of the making of the contract, of the value of about $226. This part of the contract with reference to the property rights she refused to perform, and alleges as her reason for it that the appellant had violated the contract, but in what way she does not suggest. She had the custody of the child at the time of the making of the agreement, and continued to have its custody and bore the expenses of its support and education during the year following.

On the 25th day of October, 1915, she instituted this suit against the appellant, in which she sought an absolute divorce from him upon the ground that without her fault he had abandoned her, and had, for a period of one year, lived separate and apart from her. This abandonment she alleged took place on October 23, 1914, which was the day of the date of the written contract of settlement between them. She alleged that she was a proper person to have the control and custody of the child, Edith, and asked for an absolute divorce from the appellant and the control and custody of the child, Edith and, although by the contract she had agreed to pay the costs of obtaining a divorce, she prayed in her petition to recover her costs against the appellant. On the 4th day of December, after the bringing of her suit, she made a motion for a rule against appellant, returnable on the 8th day of December, to show cause why he should not pay her $75 a month for the support and maintenance of the child, although in accordance with the written contract she had agreed, in consideration of its custody and other considerations, to bear the expenses of its maintenance and...