Banner v. Banner

• Decision Date: 23 November 1914
• Citation: 171 S.W. 2,184 Mo.App. 396
• Parties: GRANT BANNER, Appellant, v. MARY B. BANNER, Respondent
• Court: Kansas Court of Appeals

171 S.W. 2

184 Mo.App. 396

GRANT BANNER, Appellant, v. MARY B. BANNER, Respondent

Court of Appeals of Missouri, Kansas City

November 23, 1914

Appeal from Putnam Circuit Court.--Hon. Geo. W. Wanamaker, Judge.

Judgment affirmed.

N. A Franklin for appellant.

(1) Postnuptial settlements are upheld by the courts. 21 Cyc 1254. (2) Deeds of separation entered into by husband and wife are likewise upheld. 21 Cyc. 1592. (3) A wife cannot accept one provision of such a deed and repudiate another. State v. Giroux, 47 P. 718. (4) The contract of separation proved in evidence in this case is sufficient to bind both parties thereto. Sackman v. Sackman, 143 Mo. 584; Garbut v. Bowling, 81 Mo. 214; Fisher v. Clopton, 110 Mo.App. 663. (5) To support a defense based on a deed of separation, it is not necessary that a trustee be appointed. Fisher v. Clopton, supra. (6) Where there is a provision in a deed of separation for the wife's separate maintenance, she is estopped from suing for further support. Bailey v. Dillon, 71 N.E. 538; Patton v. Patton, 58 A. 1019; Powers v Powers, 53 N.Y.S. 346; Com. v. Richards, 18 A. 1007; Logan v. Philips, 18 Mo. 22.

J. C. McKinley for respondent.

(1) The suit by respondent to set aside the contract of separation and division of property was tried before the same court where the divorce case is now pending, and as the allowance of alimony pendente lite in such cases rests in the sound discretion of the court the judgment for suit money should not be disturbed, unless it appears that such discretion has been abused. State ex rel. Gercke v. Seddon, 93 Mo. 520; Adams v. Adams, 49 Mo.App. 592; Mahn v. Mahn, 70 Mo.App. 337; Cope v. Cope, 103 Mo.App. 260; Grove v. Grove, 79 Mo.App. 142; Waters v. Waters, 49 Mo. 385. (2) That part of the contract of separation which provides that, "In the event of any divorce proceedings said Mary Bell Banner is to make no claim for either temporary alimony or alimony in gross," should be held to be void, and against public policy, because it tends to facilitate the dissolution of the marriage contract. Shirk v. Shirk, 75 Mo.App. 573; McClaskey v. McClaskey, 68 Mo.App. 199; Viertel v. Viertel, 99 Mo.App. 710.

OPINION

TRIMBLE, J.

--A wife, on being sued for divorce, filed a motion for alimony pendente lite. Some years prior to the institution of the suit the wedded pair had separated and, under a written contract entered into at that time, the wife accepted certain property in full of all her interest and rights in the then present and future estate of her husband. Said contract contained this further provision: "And in the event of any divorce proceedings said Mary Bell Banner is to make no claim for either temporary alimony or alimony in gross."

Upon the filing of the wife's motion for alimony, the plaintiff husband set up the foregoing contract and also set up that in 1913 the wife had brought a suit in equity to set the contract aside for fraud, in which suit she was unsuccessful, and the contract and this judgment were pleaded in bar of her motion for alimony.

The trial court refused to allow anything for maintenance but did allow the sum of $ 100 for attorney fees and expenses of defending the divorce suit. The husband has appealed.

The motion for alimony alleged that defendant (the wife), has a meritorious defense; that she is without means to defend the suit; that her husband is worth $ 15,000; that her witnesses live in St. Joseph and in Sullivan county (more than forty miles from the place of trial which is in Putnam county); that she needs $ 300 for attorneys fees and for the proper preparation of her defense, and $ 700 for her own maintenance during the suit.

The separation contract relied upon by the husband to bar the wife's right to suit money is dated September 11, 1909, and recites that the parties being unable to live together, have mutually agreed to adjust and settle their property rights in all property now owned by them or held at any future time. Under it the wife got the use of fifty-nine acres of land until the youngest child should become of age, when forty acres of it should then revert to the husband, and he would then quitclaim to his wife the other nineteen acres to be held by her for life with remainder to him should he survive her, if not, then to his children. At the time of making this quitclaim deed he was to give her $ 500 provided she fed, clothed and cared for their two minor children until they reached their majority. In addition to the above, the wife was to have one mare and her colt, two cows, three head of hogs, 100 bushels of corn and some stalkfield and pasture. The husband also agreed to pay $ 87.50 worth of debts which the wife had incurred.

Whether this contract was carried out or not we do not know. We presume, however, that it was. The husband's petition for divorce (which was filed March 20, 1914), alleges that the children are all now of age. There is no attempt to defeat alimony on the ground that as the wife has received a reasonable and fair proportion of her husband's property she is not entitled to any further allowance, nor is it claimed that she is able financially at this time to defend the suit. The sole point is that the above quoted clause in the contract bars her from any right to suit money.

Agreements in the nature of postnuptial settlements, having no element of fraud in them, are upheld by the courts. [21 Cyc. 1254.] So, also, are agreements for separation and separate maintenance, if made in prospect of an immediate separation, and are reasonable, fair and voluntary. [9 Cyc. 519; 21 Cyc. 1592; Roberts v. Hardy, 89 Mo.App. 86; Fisher v. Clopton, 110 Mo.App. 663, 85 S.W. 623.] And it is also true that where a reasonable provision is made in a deed of separation for the wife's separate maintenance, she is estopped from suing for further support. She cannot as a rule accept one provision in a contract of separation and separate maintenance and repudiate another. [State ex rel. Giroux v. Gironx, 19 Mont. 149, 47 P. 798; 21 Cyc. 1595; Bailey v. Dillon, 71 N.E. 538; Patton v. Patton, 58 A. 1019.] The trial court, therefore, gave effect to the contract herein when it refused to allow the wife anything further in the way of maintenance. But an allowance...