Bishop v. Bishop, 26026.

• Decision Date: 02 June 1942
• Docket Number: No. 26026.,26026.
• Citation: 162 S.W.2d 332
• Parties: BISHOP v. BISHOP.
• Court: Missouri Court of Appeals

162 S.W.2d 332

BISHOP v. BISHOP.

No. 26026.

St. Louis Court of Appeals. Missouri.

June 2, 1942.

Rehearing Denied June 19, 1942.

Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.

"Not to be reported in State Reports."

Action on contract by Lucile Juliet Bishop against Daniel S. Bishop. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

See, also, Mo.App., 151 S.W.2d 553.

Claude W. McElwee, of St. Louis, for appellant.

Igoe, Carroll, Keefe & Coburn and Thomas L. Croft, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action, commenced on April 25, 1940, to recover on a contract executed by plaintiff and defendant, who were then husband and wife, in settlement of their property rights in contemplation of a separation and divorce. The trial, with a jury, resulted in a verdict in favor of plaintiff for $1,419.82. Judgment was given accordingly, and defendant appeals.

Plaintiff commenced her suit for a divorce in the Circuit Court of St. Louis County on November 19, 1937. She charged in her petition as grounds for a divorce that defendant had offered her such indignities as to render her condition intolerable. The divorce suit resulted in a judgment in favor of plaintiff and against defendant, dissolving the bonds of matrimony existing between them.

The contract in suit here was executed in October, 1937. It was filed in the divorce suit at the time of the rendition of the judgment, and was approved by the court.

Omitting caption and signatures, the contract is as follows:

"In the event the Court, after having heard the evidence herein and after having considered the same, shall determine and adjudge that plaintiff is entitled to a decree of divorce, then, and in that event, it is hereby stipulated and agreed between the parties hereto, as and for settlement of plaintiff's property rights and as award for alimony, as follows:

"(1) That defendant shall pay the plaintiff, from and after the date of the decree of divorce herein, one-third of his total gross income, from whatever source derived, provided, however, that defendant shall not be obligated at any time to pay on account of this item a sum greater than One Hundred Dollars ($100.00) per week.

"(2) And in addition to the above, defendant shall pay to plaintiff Two Hundred Dollars ($200.00) per year, payable quarterly, as an allowance for the purchase of clothes, provided, however, that if during any year the amount received by plaintiff under paragraph (1) hereof, shall be equal to or exceed an average of Sixty Dollars ($60.00) per week, then defendant shall not be obligated to make any payment for clothes allowance.

"(3) If, at any time or times, during a period of two years, beginning from the date of the granting of a decree of divorce herein, the condition of plaintiff's health is such as to make it reasonably necessary for her to have the care of doctors, nurses, hospital or other medical expense, and if the amount of such items of expense for any one illness shall exceed the sum of Fifty Dollars ($50.00), then defendant shall pay for all such items in excess of Fifty Dollars ($50.00) which are reasonable and necessarily incurred in connection with such illness. If any such illness occurs, in which such expense is for hospitalization, which includes board and room, then plaintiff agrees that one-half of the amount which she receives under paragraph (1) hereof, shall be applied to the payment of the item for board and room and shall be a credit, in addition to said Fifty Dollars ($50.00), on the amount which defendant is to pay.

"(4) Defendant shall pay for the Ford automobile now in possession of plaintiff, and shall pay for all reasonably necessary repairs until said automobile has been fully paid for; then defendant shall convey the same, free and clear of all liens, to plaintiff.

"(5) The defendant shall obtain in a company, to be approved by the plaintiff, an ordinary life insurance policy on his life in the sum of Six Thousand Dollars ($6,000.00), providing for double indemnity in case of death by accident, and defendant shall pay, when due, all premiums on said policy and shall cause plaintiff to be designated in such policy as the sole and irrevocable beneficiary and shall assign to plaintiff all rights of whatever nature may accrue under said policy and shall cause the insurance company to forward all receipts in payment of premiums to plaintiff and to notify plaintiff of the non-payment of any premium thereon, or any lapse of said policy or of any change, or proposed change therein, which would in any way decrease or affect her rights therein.

"(6) If plaintiff should predecease defendant, then there shall be no further obligation on defendant to continue to pay premiums on the life insurance policy mentioned in the preceding paragraph, but it shall be the duty of defendant to provide for a proper and fitting funeral for plaintiff and to provide for her interment in the St. Louis Truth Center, or at any other place which she may designate by will, provided, however, that, if plaintiff shall make by will any provisions for her funeral contrary to the above, such provision shall control.

"(7) The diamond ring, given plaintiff by defendant, shall at the death of plaintiff be the property of defendant.

"(8) The aforesaid shall constitute a full and complete settlement of all of the claims, rights, or duties which either party owes to the other, and shall constitute a full and complete release thereof, and in consideration hereof, plaintiff does hereby expressly release any and all claims of whatever nature which she has or may have against defendant, including any right to dower or other property interest."

On February 27, 1940, plaintiff filed a motion in the divorce suit, asking that the judgment be amended nunc pro tunc so as to conform to said contract. On the same day she also filed a motion for execution. These motions were heard together and overruled. Upon appeal to this court the judgment overruling said motions was affirmed. See: Bishop v. Bishop, Mo.App., 151 S.W.2d 553, 554, 557.

The present action, which was pending at the time said motions were filed in the divorce suit, is based upon the first, second, and third paragraphs of the contract.

Defendant assigns error here for the refusal of his instruction in the nature of a demurrer to the evidence.

In support of this assignment defendant contends that the contract sued on here is a mere agreement for the allowance of alimony in the divorce suit, and in legal effect was advisory only to the court in a divorce suit, and could be rendered effectual only through a judgment rendered thereon in the divorce suit, so that an independent action thereon, such as this, cannot be maintained. Defendant so contends notwithstanding that, when the motions filed by plaintiff in the divorce suit were here on appeal, as before stated, he contended that the contract was not a mere agreement for the allowance of alimony, but was in the nature of a settlement of property rights, so that the court had no jurisdiction to render a judgment thereon in the divorce suit.

On that appeal we ruled as follows: "Obviously, the remedy here pursued by plaintiff does not lie. Her remedy is by her independent action, which, as already said, is now pending."

We can see no reason for disturbing that ruling.

Defendant further insists that his instruction in the nature of a demurrer to the evidence should have been given because the contract sued on is collusive. He insists that this appears both on the face of the contract and from plaintiff's own testimony as well. He urges in argument that this is so because the contract was to become effective only in the event the court, after hearing the evidence and considering the same, should adjudge that plaintiff was entitled to a divorce, and further because plaintiff's own testimony shows that defendant stated he was unwilling to sign any contract for separate maintenance unless she agreed to get a divorce, and that it was her understanding when the contract was signed that defendant would not contest the divorce suit.

As a general rule voluntary settlements of property rights and interests between spouses pending or prior to divorce proceedings are binding on the parties and will be upheld if they are fair and equitable, untainted with fraud, collusion, coercion, undue influence, or the like, and not contrary to public policy as being conducive to divorce. If the object of the contract is to divorce man and wife, it is against public policy and void. The law will not suffer husband and wife to dissolve the marriage relation of their own accord. To induce a wife to sue for a divorce by a promise on the part of the husband to remunerate her for it is against public policy and the promise is void. So, too, a bargain that there shall be no defense is collusive and against public policy, and any promise founded on such an undertaking is void.

In North v. North, 339 Mo. 1226, 100 S. W.2d 582, loc. cit. 584, 109 A.L.R. 1061, our Supreme Court stated the applicable rule as follows: "The law is too well settled in this state to admit of dispute that husband and wife, in contemplation of a separation and divorce, may, by valid contract between themselves, settle and adjust all property rights growing out of the marital relation, including the wife's right of dower and claim for alimony, support, and maintenance."

The court further on in its opinion reiterated that the proposition appeared to be clear "that husband and wife in contemplation of separation and divorce may, by contract between themselves, settle and adjust all of their property rights growing out of the marital relation."

In Dorsett v. Dorsett, 232 Mo.App. 126, 90 S.W.2d 188, loc. cit. 194, this court stated the rule as follows: "Under the law of Missouri, as it exists at present, both husband and wife, being sui juris, may make a valid...