Beard v. Beard

• Decision Date: 18 July 1933
• Docket Number: 5952
• Citation: 24 P.2d 47,53 Idaho 440
• Parties: BERTHA ELLEN BEARD, Respondent, v. CHARLES EDWARD BEARD, Appellant
• Court: Idaho Supreme Court

24 P.2d 47

53 Idaho 440

BERTHA ELLEN BEARD, Respondent, v. CHARLES EDWARD BEARD, Appellant

No. 5952

Supreme Court of Idaho

July 18, 1933

HUSBAND AND WIFE-SEPARATION SETTLEMENT.

Alimony suit money, separation and property settlement agreement of husband and wife held valid, in absence of fraud, coercion undue influence or overreaching (I. C. A., secs. 28-101, 31-201, 31-601, 31-704, 31-706, 31-707, 31-715, 31-901, 31-916).

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Appeal from a judgment and decree sustaining the validity of a separation and property settlement agreement. Affirmed.

Affirmed.

A. L Morgan, for Appellant.

Any contract between husband and wife attempting to abrogate, limit or in any way modify marital duties enjoined by law, or to eliminate or change any part or portion of the marriage status created by law, is null and void. (Lyons v. Schanbacher, 316 Ill. 569, 147 N.E. 440; Hill v. Hill, 74 N.H. 288, 67 A. 406, 124 Am. St. 966, 12 L. R. A., N. S., 848; VanKoten v. VanKoten, 323 Ill. 323, 154 N.E. 146, 50 A. L. R. 347; Keyes v. Keyes, 51 Idaho 670, 9 P.2d 804.)

Orland & Goff, for Respondent.

Voluntary agreements waiving right of further support by husband or wife are valid and binding when made in connection with a property settlement and an existing or immediately contemplated separation. (Lamb v. Brammer, 29 Idaho 770, 162 P. 246; Johnson v. Richards, 50 Idaho 150, 294 P. 507; Roden v. Roden, 29 Ariz. 398, 242 P. 337; Daniels v. Benedict, 97 F. 367.)

WERNETTE, J. Budge, C. J., Givens and Holden, JJ., and Reed, District Judge, concur.

OPINION

WERNETTE, J.

This is an appeal from a decree of the district court of Latah county, declaring as valid and subsisting a separation and property settlement agreement entered into by the parties. The essential facts are as follows: Appellant and respondent were married at Moscow, Idaho, October 2, 1917, and ever since have been husband and wife, and practically all of said time have been residents of the state of Idaho; that shortly after said marriage the respondent voluntarily accepted employment as a saleslady, and since said time has been continuously so employed; that respondent furnished practically all of the support of the parties since the marriage, and what little the appellant contributed in cash was insufficient to pay for his own individual support; that appellant and respondent have been living separate and apart since the month of April, 1931, the primary cause of the separation being differences that arose between them due to the laziness and idleness of appellant.

Respondent was industrious and saving; as a result the parties had accumulated cash, bonds and securities amounting to approximately $ 7,000, all due to the personal earnings of respondent. On the eighth day of October, 1931, the parties entered into a separation and property settlement agreement, which reads as follows:

"This agreement, made this 8th day of October, 1931 between Charles Edward Beard and Bertha Ellen Beard, husband and wife, Witnesseth:

"Whereas, differences have arisen between said husband and wife, on account of which they are separated and now live apart, and intend to live apart from each other during the remainder of their natural lives, and,

"Whereas, the said parties are mutually desirous of severing their marital relations;

"Now, therefore, in settlement, adjustment and compromise of all property questions and rights, the said husband, for and in consideration of the sum of $ 1000.00, to him paid by said wife, and the receipt of which is hereby by him acknowledged, does hereby assign, transfer and set over unto said wife any interest he may have in and to any and all personal property, money, shares of stock, notes, bonds, of whatsoever character standing in the name of said wife, except that said husband is to have and retain the household furniture in his room in the Egan's Apartments in the city of Moscow, Idaho, including the piano; and said wife, in further consideration of the premises, has this day executed a warranty deed to said husband, conveying to him that certain tract situated in Juliaetta, Latah county, Idaho, and described as follows, to-wit: Lots Nineteen (19) and Twenty (20) in Block No. Ten (10), in the original Town of Juliaetta.

"This agreement is a full and complete settlement of all property rights between the parties hereto as husband and wife, both now and after the death of either party to this agreement. From this time forward neither party shall have any interest of any kind or nature in or to any property, real, personal or mixed of the other party to this agreement, whether now owned by such party or hereafter acquired. In case either party applies for a divorce, this agreement shall be a full settlement of all property rights in such divorce action, and neither party in such action shall have the right to obtain any part of the property of the other or require the party to pay attorney's fees, alimony or suit money on account of such action for divorce. In the future, neither party shall be under any obligation to support the other.

"Each party to this agreement herewith solemnly and specifically avers that the foregoing agreement has been entered into without influence or fraud or coercion or misrepresentation.

"In witness whereof the above parties hereto have hereunto set their hands and seals the day and year first above written.

"CHARLES EDWARD BEARD.

"BERTHA ELLEN BEARD.

"Signed in the presence of

"ADRIAN NELSON."

Upon the execution of the said contract respondent paid to appellant the $ 1,000 mentioned in said contract, being money on deposit in the bank, of the savings from respondent's earnings, and also conveyed by deed, delivered to appellant, the real property described therein.

Respondent instituted an action for divorce against appellant, based on nonsupport, in which she prayed for an absolute decree of divorce and that said property settlement be approved and confirmed. Appellant appeared by answer and cross-complaint, denying nonsupport and alleging that his signature was obtained to the contract by fraud; praying that the action for divorce by respondent be dismissed and that the said contract be set aside and held for naught. After the issues were framed the case was tried before the court. The court refused to grant to respondent the divorce, dismissed her action, held that the contract was valid, subsisting and binding upon the parties and approved and confirmed the same.

Appellant retained the $ 1,000 paid him from the personal earnings of respondent, but after the evidence was closed, without request to reopen the case, and upon notice to opposing counsel, prior to submitting briefs to the court for its determination, appellant deposited with the clerk of the court a deed reconveying to respondent the real property conveyed to him by respondent.

The two specifications of error assigned are to the effect that the court was in error in finding and decreeing that the contract is a valid and subsisting contract as between the parties, and by approving and confirming the same, for the reason that the alleged contract was, and is, void as shown upon its face.

Appellant takes the position that under our statutes marriage is a personal relation arising out of a civil contract and can only be dissolved by death or a decree of the district court, sections 31-201, 31-601 and 31-715, Idaho Code Annotated; that by reason of the marriage certain mutual obligations arise between the parties, in that the husband and wife contract with each other obligations of mutual respect, fidelity and support, sections 31-901 and 31-916, Idaho Code Annotated; also that the right of the wife to alimony and suit money is fixed by law and part of the marriage contract, sections 31-704, 31-706 and 31-707, Idaho Code Annotated.

The appellant with great zeal and persuasive argument contends that the contract amounts to a modification, by the parties themselves, of the marriage relation, in violation of the laws of the state and against public policy, and is therefore null and void. He is supported in such contention by respectable authority. One of the leading cases in support of the theory advanced by appellant (Lyons v. Schanbacher, 316 Ill. 569, 147 N.E. 440), in which case a similar contract was under consideration, the court among other things said:

"The purpose of this agreement was the renunciation of the marital obligation. One consideration for its execution was the release of appellant forever from any obligation to support or contribute to the support of his wife. The duty of the husband to support the wife is imposed upon him by law. It does not depend upon inadequacy of the wife's means, but upon the marriage relation. Husband and wife may contract with each other as to their mutual property rights, but the husband cannot by contract, either before or after marriage, relieve himself of the obligation imposed upon him by law to support his wife."

The supreme court of the state of New Hampshire, in Hill v. Hill, 74 N.H. 288, 67 A. 406, 124 Am. St. 966, 12 L. R. A., N. S., 848, and the supreme court of the state of Wisconsin, in Ryan v. Dockery, 134 Wis. 431, 114 N.W. 820, 126 Am. St. 1025, 15 L. R. A., N. S., 491, held just as emphatically to the same effect as the Illinois court, that such contracts are null and void; that husband and wife cannot, by contract, vary the personal duties and obligations to each other, which result from the marriage contract itself.

In the case of VanKoten v. VanKoten, 323 Ill. 323, 154 N.E 146, 50 A. L. R. 347, one of the cases cited by appellant, the supreme court of Illinois...