Canning v. Canning

• Decision Date: 11 February 1914
• Citation: 89 A. 1088,87 Vt. 492
• Parties: CANNING v. CANNING.
• Court: Vermont Supreme Court

89 A. 1088

87 Vt. 492

CANNING

v. CANNING.

Supreme Court of Vermont. Washington.

Feb. 11, 1914.

Exceptions from Washington County Court; Frank L. Fish, Judge.

Petition for divorce from bed and board by James Canning against Martha Canning. Demurrer to petitioner's replication to petitionee's plea overruled, and petitionee excepted. Affirmed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Fred L. Laird and Senter & Senter, all of Montpelier, for petitioner.

Theriault & Hunt, of Montpelier, for petitionee.

TAYLOR, J. This is a petition for divorce from bed and board. The petitionee pleaded in bar articles of separation. To this plea, the petitioner replied that the cause alleged in his petition was unknown to him at the time of the execution of the separation agreement. To the replication, the petitionee demurred. The court below overruled the demurrer, and adjudged the replication a sufficient answer to the plea, and that the petitioner might maintain his petition, for divorce, to which the petitionee was allowed an exception, and the cause passed to this court before final hearing.

The plea alleges, in substance, that on the 24th day of October, 1907, because of the fact that the marital relations between the petitioner and petitionee were not pleasant, and being unable to live happily as husband and wife, they entered into the following agreement:

"An agreement, made and entered into by and between James C. Canning, of Montpelier, in the county of Washington and state of Vermont, of the first part, and Martha Canning, of said Montpelier, in the county of Washington and state of Vermont, of the second part,

"Witnesseth: That whereas, the said James C. Canning and Martha Canning, being husband and wife; and whereas, their marital relations are not pleasant: Therefore, in consideration of the covenants, agreements, grants, releases, and stipulations hereinafter expressed, agreed upon, and consented to, the said James C. Canning and Martha Canning are to separate and live separately and apart from each other until said marital relations are severed by the decease of one or the other of said parties.

"in consideration of the covenants and agreements hereinafter set forth, the said James C. Canning hereby agrees to pay, or cause to be paid, to the said Martha Canning the sum of six dollars per week, said sum to be paid to the said Martha Canning every week during the lifetime of the said James C. Canning; but, if the said Canning should decease within four years from the date of this instrument, then the said six dollars per week is to be paid out of his estate up to a period of four years from October 24, A. D. 1907.

"The said James C. Canning, for himself and his heirs, further agrees, for the consideration hereinafter expressed, to remise, release, and waive any and all claims to any property, real or personal, which he might have or would have in and to the property of the said Martha Canning as her husband.

"The said Martha Canning, for herself, her heirs and assigns, for the consideration of the agreements above set forth to be performed by the said James C. Canning, agrees as follows: To accept said six dollars per week during the lifetime of the said James C. Canning; to release all her right, title, and interest to and in the real estate of the said James C. Canning by signing, as wife of the said James C. Canning, a deed conveying said real estate to C. P. Pitkin and Antoine Galaise in trust and as trustee for the said James C. Canning; to remise, release, and waive any and all claims she may or might have in and to the estate of the said James C. Canning as his wife, or at his decease as his widow; to contract no bills in the name of the said James C. Canning from the date of the execution of this instrument; to vacate the house of the said James C. Canning, located on North street, in the city of Montpelier immediately upon the execution of this agreement.

"Both of said parties by this instrument mutually agree to live apart and separately from each other during their natural lifetime, and at the decease of either the other shall make no claim to, or assert any interest in, the property of the deceased.

"Dated October 24, A. D. 1907.

"James Canning. [L. S.]

"Martha Canning. [L. S.]

"in the presence of: "Fred L. Laird. "Mary Canning."

The plea further alleges that the petitionee has fully performed said agreement on her part, and that the same is in full force and effect. One of the alleged grounds of divorce is adultery claimed to have been committed by the petitionee prior to the date of the separation agreement. In his replication the petitioner alleges that at the time of making the pretended agreement for separation, set forth in the petitionee's plea, he had no knowledge, information, or belief as to the fact that the petitionee had committed the crime of adultery, as alleged in his petition for divorce.

The petitionee contends that the agreement pleaded is an undertaking on the part of both parties to remain husband and wife, living separate and apart from each other, until the death of one of them. Conceding that the agreement amounts to an undertaking to remain husband and wife "until death doth us part," it is, in that behalf, but a confirmation of their marriage vows. It contains no express promise not to sue for separation for causes afterwards arising, and we think cannot be construed into an agreement not to do so for a pre-existing cause unknown to the innocent party.

The petitionee relies upon Squires v. Squires, 53 Vt. 208, 38 Am. Rep. 668, in support of her claim that the agreement is a bar to this petition. That was a libel for divorce on the ground of intolerable severity, and the contract was entered into after the separation had occurred through the intervention of a third person acting for the wife. From the very nature of the alleged cause of divorce, it must have occurred before the separation, and must have been known to the petitioner at the time the agreement was entered into. In the case at bar the alleged cause for divorce, though antedating the agreement, was then unknown to the petitioner. Unlike the Squires Case, the agreement is not by a third party on behalf of the wife, but is a contract between husband and wife alone; moreover, in this case the separation had not occurred, and it does not appear that it was then imminent. It was said in the Squires Case: "it is not the policy of the law to encourage separations between husbands and wives. The rule established in many cases is that articles calculated to favor a separation which has not yet taken place will not be supported."

The argument in the case at bar proceeded upon the theory that the separation agreement is a valid contract. We think there is room for doubt (1) whether such a contract entered into between husband and wife without the intervention of a third person can be upheld at law (1 Bish. Mar., Sep. & Div. § 1286; P. S. 3037; First National Bank of Montpelier v. Bertoli, 87 Vt. ——, 89 Atl. 359, and cases cited; monographic note to Baum v. Baum, 83 Am. St. Rep. 859, and cases cited); (2) whether, in the absence of allegations that the separation had...