Connolly v. Connolly, 12137

• Citation: 270 N.W.2d 44
• Decision Date: 21 September 1978
• Docket Number: No. 12137,12137
• Parties: Thelma E. CONNOLLY, Plaintiff and Appellant, v. William T. CONNOLLY, Defendant and Respondent.
• Court: Supreme Court of South Dakota

Page 44

270 N.W.2d 44

Thelma E. CONNOLLY, Plaintiff and Appellant, v. William T. CONNOLLY, Defendant and Respondent.

No. 12137.

Supreme Court of South Dakota.

Sept. 21, 1978.

Rehearing Denied Oct. 13, 1978.

Thomas W. Parliman of Parliman & Parliman, Sioux Falls, for plaintiff and appellant.

Everett A. Bogue of Bogue, Weeks & Rusch, Vermillion, for defendant and respondent.

WOLLMAN, Chief Justice.

This is an appeal from that portion of a judgment and decree in this divorce action that upheld as valid and enforceable an antenuptial agreement concerning appellant's right to alimony. We reverse and remand.

Appellant and respondent were married on February 15, 1969. Appellant was then 64, and respondent was 81. Both parties had been married before. Some five days prior to the marriage, the parties signed an agreement in the office of respondent's attorney that provided in part:

It is understood and agreed by and between the parties hereto that each of them relinquishes and releases the other from any and all claims of support and of any and all interest in the property of the other except as herein provided, meaning and intending that neither of the parties hereto shall acquire any interest in the property of the other by reason of their marriage except as herein provided.

It is further agreed between the parties hereto that in the event of divorce or legal separation of the parties during the lifetime of both parties, then regardless of the fault of either party, the other benefits herein provided for and assured to the party of the second part shall cease. In lieu thereof, party of the first part will provide an annuity for the benefit of party of the second part in such an amount and so designed as to yield to party of the second part an income equal to the benefits she would have received from her widow's pension from Northern States Power Company (which terminates by reason of her marriage) during the period of her life expectancy at the time of such divorce or separation as based on the American Experience Mortality Table; provided further that such annuity shall cease in the event of her remarriage or death before the expiration of the period of her life expectancy, after which the remainder in the annuity fund will be paid to the party of the first part of (sic) to his children if he shall then be deceased.

On March 31, 1970, the parties by written agreement modified the antenuptial agreement by striking a portion that is not material to the issue presented by this appeal. This subsequent agreement also recited that the parties were confirming and ratifying the remainder of the original agreement.

The marriage did not prove to be a happy one, and in August of 1975, appellant commenced divorce proceedings. She included in her prayer for relief a claim for alimony. The trial court held that those portions of the antenuptial agreement set forth above were valid and enforceable. The judgment and decree of divorce accordingly provided that appellant should receive $149.96 per month (the amount appellant would have received from her pension from her former employer had she not remarried) during her remaining eight year life expectancy, or until her remarriage or death.

Appellant contends that the provisions in the antenuptial agreement that purport to restrict her right to receive alimony in the event of a divorce are void and unenforceable because they are contrary to the public policy of this state. At one time, it was the rule that any attempt by the parties to a marriage to diminish or waive by way of an antenuptial agreement a husband's duty to support his wife by way of alimony was unenforceable as being contrary to public policy. See In re Marriage of Higgason, 10 Cal.3d 476, 110 Cal.Rptr. 897, 516 P.2d 289, and cases cited therein. A concise statement of the bases for the rule is found in In re Marriage of Gudenkauf, Iowa, 204 N.W.2d 586, 587:

The rule has two principal bases. One is that such a provision may tend to facilitate or induce dissolution of the marriage. . . . The policy which invalidates antenuptial prohibitions of alimony does not depend upon the result in a given case. It operates Ab initio to void such provisions in every case.

The other basis for the rule is the principle that the interspousal support obligation is imposed by law and cannot be contracted away. Norris v. Norris, (Iowa, 174 N.W.2d 368 (1970)) at 370, and citations; Garlock v. Garlock, 279 N.Y. 337, 18 N.E.2d 521 (1939); § 598.21, The Code. The policy involved is that conditions which affect alimony entitlement cannot accurately be foreseen at the time antenuptial agreements are entered, and public interest in enforcement of the legal obligation to support overrides a premarital anticipatory forfeiture of alimony. Reiling v. Reiling, 256 Or. 448, 474 P.2d 327, 328 (1970).

Some of the more recent decisions, however, seem to have receded from this flat prohibition against enforcing agreements of this nature in favor of a more flexible ad hoc approach that determines the validity of such an agreement on the basis of the facts of each case. See, e. g., In re Marriage of Dawley, 17 Cal.3d 342, 131 Cal.Rptr. 3, 551 P.2d 323 (overruling in part In re Marriage of Higgason, supra); Unander v. Unander, 265 Or. 102, 506 P.2d 719 (in effect overruling Reiling v. Reiling, 256 Or. 448, 474 P.2d 327, cited in the Gudenkauf case, supra); Posner v. Posner, Fla., 233 So.2d 381; Volid v. Volid, 6 Ill.App.3d 386, 286 N.E.2d 42.

Whatever the trend of judicial decisions in other jurisdictions may be with respect to the continuing validity of the rule that antenuptial agreements of this nature are void as against public policy, we conclude that the provisions in question here are contrary to the public policy expressed in our statutes. It is the obligation of the husband to support his wife. SDCL 25-7-1. SDCL 25-2-13 provides:

A husband and wife cannot by any contract with each other alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation and may make provision for the support of either of them and of their children during such separation. The mutual consent of the parties is sufficient consideration for such separation agreement.

SDCL 25-4-41 provides:

Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support...