Cleary v. La France

• Decision Date: 03 May 1938
• Docket Number: No. 905.,905.
• Citation: 199 A. 242
• Court: Vermont Supreme Court
• Parties: CLEARY v. LA FRANCE.

199 A. 242

CLEARY

v. LA FRANCE.

No. 905.

Supreme Court of Vermont. Orleans.

May 3, 1938.

Exceptions from Orleans County Court; Alfred L. Sherman, Judge.

Action by Walter H. Cleary, as trustee of Alice M. La France, against Ernest S. La France upon a written separation agreement between husband and wife, wherein plaintiff was trustee. From an order overruling a demurrer to the declaration, defendant brings exceptions.

Affirmed and remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Sterry R. Waterman, of St. Johnsbury, for plaintiff. Raymond L. Miles, of Newport, for defendant.

MOULTON, Justice.

This is an action in contract. The declaration alleges that on June 4, 1932, the defendant Ernest La France and Alice M. La France, his wife, were, and had been for some time then past, living separate and apart from each other; that, desiring to come to an amicable settlement, they executed a written contract with Walter H. Cleary, the plaintiff, as trustee, the material parts of which were as follows: In consideration that he was released from all obligation and liability for the future support of his wife the defendant transferred to the plaintiff, as trustee, certain household goods and furnishings, agreed to discharge certain outstanding indebtedness, and to pay each week to the plaintiff, as trustee, a certain sum of money, for the care and support of his wife; in consideration of these weekly payments to the plaintiff, to be used for her support, and the payment of the specified debts, Alice agreed with the plaintiff, as trustee, that she would undertake and assume her own support, without further expense to, or liability on the part of, the defendant; in consideration of the performance of the agreement by the defendant and his wife, the plaintiff agreed to accept the trust, to receive the money and to disburse it for the support of Alice; and "the further consideration for this contract is the agreement of the other parties to the contract and the performance of the contract by each of them." It is alleged that Alice M. La France has performed her part of the contract, and the plaintiff, as trustee, has been willing to perform his part, and has done so except in so far as he has been prevented by the failure of the defendant to carry out his promises and undertakings, but the latter has failed to make all the stipulated weekly payments, and is now in arrears, to recover which this action is brought.

The defendant demurred upon the grounds that the contract was void as being without consideration, and against public policy, in that it contemplated a continued voluntary separation between husband and wife, and the prevention of a reconciliation between them, and was an agreement by mutual consent for a separation from bed and board. The demurrer was overruled in the trial court, and the cause is here on defendant's exceptions.

However askance the law may once have looked upon agreements contemplating the separation of husband and wife, they are no longer regarded with such disfavor as to condemn them under all circumstances. It is now well settled in England, and in the great majority of jurisdictions in this country, that it is not against public policy to allow the spouses, where the separation has already taken place, or is immediately to take place, fairly to define by contract their mutual rights and obligations with respect to property and to the wife's support whether such agreement is made directly between the spouses or through the intervention of a trustee. Peters v. Peters, 20 Del.Ch. 28, 169 A. 298, 301, 302; Grime v. Borden, 166 Mass. 198, 199, 200, 44 N.E. 216; French v. McAnarney, 290 Mass. 544, 195 N.E. 714, 98 A.L.R. 530, 532; Clark v. Fosdick, 118 N. Y. 7, 22 N.E. 1111, 1112, 1113, 6 L.R.A. 132, 16 Am.St.Rep. 733; Winter v. Winter, 191 N.Y. 462, 84 N.E. 382, 16 L.R.A.,N.S., 710, 713, 714; VanKoten v. VanKoten, 323 Ill. 323, 154 N.E. 146, 50 A.L.R. 347, 350; Aspinwall v. Aspinwall, 49 N.J.Eq. 302, 24 A. 926, 927; Clark v. Clark, 176 A. 81, 83, 13 N.J.Misc. 49; Walker v. Beal, 9 Wall. 743, 750, 19 L.Ed. 814, 817; Carey v. Mackey, 82 Me. 516, 20 A. 84, 85, 9 L.R.A. 113, 17 Am.St.Rep. 500; cases cited annotations 1 L.R.A. 512; 12 L.R.A.,N.S., 848; 50 A. L.R. 352; 3 Williston on Contracts, p. 3042, par. 1742; Restatement of Contracts, par. 584; Peaslee, "Separation Agreements under the English Law," 15 Harvard Law Review, 638. As Sir George Jessell, Master of the Rolls, said in Besant v. Wood, L. R. 12 Ch.Div. 605, 620: "For a great number of years both ecclesiastical judges and lay judges thought it was something very horrible, and against public policy, that husband and wife should agree to live separate; and it was supposed that a civilized country could no longer exist if such agreements were enforced by courts of law, whether ecclesiastical or not. But a change came over judicial opinion as to public policy, other considerations arose, and people began to think that, after all, it might be better and more beneficial for married people to avoid in many cases the expense and scandal of suits of divorce by settling their differences quietly by the aid of friends out of court, although the consequence might be that they would live separately; and that was the view carried out by the courts when it became once decided that separation deeds per se were not against public policy."

Our own decisions are in harmony with this view. In Squires v. Squires, 53 Vt. 208, 38 Am.Rep. 668, a postnuptial scaled agreement, signed by the husband and the father of the wife, as the latter's agent, providing that the spouses should live separate and apart, that the husband should surrender to the wife all the property that belonged to her before the marriage and should pay certain sums for her benefit, and for the benefit of her daughter, and that the wife should release her dower and homestead rights and support herself, was held under the circumstances of the case to be a defense to a petition for divorce subsequently brought by the wife. In the opinion (53 Vt. 208, at pages 210, 211, 38 Am.Rep. 668) Veazey, J., quoted with approval the words of Cooley, C. J., in Randall v. Randall, 37 Mich. 563, that "when a separation has actually taken place, or it has been fully decided upon, and the articles contain a suitable provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no principle of public policy is disturbed by them." In Canning...