Amspoker v. Amspoker

• Decision Date: 03 December 1915
• Docket Number: 18460
• Parties: ANNIE E. AMSPOKER, APPELLEE, v. SAMUEL D. AMSPOKER, APPELLANT
• Court: Nebraska Supreme Court

155 N.W. 602

99 Neb. 122

ANNIE E. AMSPOKER, APPELLEE, v. SAMUEL D. AMSPOKER, APPELLANT

No. 18460

Supreme Court of Nebraska

December 3, 1915

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed as modified.

AFFIRMED AS MODIFIED.

H. N Mattley and W. T. Stevens, for appellant.

L. C Burr and R. J. Greene, contra.

ROSE, J. LETTON, J., not sitting.

OPINION

ROSE, J.

Plaintiff, who was formerly the wife of defendant, brought this action against him to recover $ 2,800 on a contract recognizing an existing separation and providing for the adjustment of their property rights. In a former suit, instituted by her after the execution of the contract, she procured a divorce without alimony. The husband, according to the terms of the contract mentioned, agreed to transfer to his wife a house and lot in Lincoln, the household property in her possession, and two shares of stock in a building and loan association. He permitted her to retain a similar share of stock standing in her own name. He promised to pay her existing doctor and hospital bills, and the costs of a suit by her for a divorce and an attorney's fee of $ 50 for prosecuting it. In addition, he agreed to pay her for support and maintenance $ 3,000 in monthly installments of $ 50 each. The wife, on her part, agreed to convey to her husband her interest in a lot in Lincoln, Nebraska, and in a lot in Pecos, Texas. She also agreed, upon her husband's performance of all the terms of his agreement, not to demand alimony in any action against him for a divorce. Defendant admitted the execution and delivery of the contract, but pleaded that it was procured by duress, that its terms were unconscionable, and that it was void as being contrary to public policy. Upon a trial of the issues, the district court rendered a judgment in favor of plaintiff for the unpaid installments and interest, computed to be $ 3,246.50. Defendant appealed.

Plaintiff performed the contract on her part. Defendant complied with his agreements, except that he refused to pay the monthly installments after having paid them for eight months. The defense of duress was not proved. The evidence does not justify a finding that the burdens assumed by defendant were unconscionable. The appeal, therefore, presents these questions: Is the contract void as collusive? Is it void as facilitating a divorce in violation of public policy?

On the part of plaintiff there was no occasion for collusion. The evidence shows beyond question that the parties were not living together as man and wife when the contract was executed, that plaintiff then had more than one legal ground for a divorce, that she was entitled to reasonable alimony, that marital relations were never resumed, and that a divorce was promptly granted to her. Under such circumstances the law in the states of this country, with one or two exceptions, is that reasonable agreements confined to the adjustment of property rights are binding on the parties and may be enforced by the courts. Cases announcing this rule and giving the reasons on which it rests are collected in a note, in 12 L. R. A. n. s. 848, to Hill v. Hill, 74 N.H. 288, 67 A. 406.

It is argued, nevertheless, that the contract,...