Connolly v. Connolly, No. 12137

CourtSupreme Court of South Dakota
Writing for the CourtWOLLMAN
Citation270 N.W.2d 44
Decision Date21 September 1978
Docket NumberNo. 12137
PartiesThelma E. CONNOLLY, Plaintiff and Appellant, v. William T. CONNOLLY, Defendant and Respondent.

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.

Page 45

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.

Page 46

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...

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28 practice notes
  • Marriage of Pendleton, In re, No. B113293
    • United States
    • California Court of Appeals
    • March 26, 1998
    ...Marriage of Spiegel (Iowa 1996) 553 N.W.2d 309, 319); New Mexico (N.M.S.A.1978, § 40-3A-4); South Dakota (Connolly v. Connolly (S.D.1978) 270 N.W.2d 44, 46); and Vermont (Stearns v. Stearns (1894) 66 Vt. 187, 28 A. 875). In Michigan, the courts are divided. (Compare Scherba v. Scherba (1954......
  • Sanford v. Sanford, No. 23175
    • United States
    • Supreme Court of South Dakota
    • March 9, 2005
    ...obligations is void and unenforceable as to both property and alimony. [¶ 15.] This Court previously held in Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978), that provisions in a prenuptial agreement purporting to limit alimony obligations are against public policy and therefore not enforcea......
  • Frey v. Frey, No. 53
    • United States
    • Court of Appeals of Maryland
    • February 23, 1984
    ...618 (La.1978) (waiver of alimony pendente lite is against public policy; not decide question of permanent alimony); Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978) (not void per se, but court has ultimate authority). Contra In re Marriage of Gudenkauf, Page 562 204 N.W.2d 586 (Iowa 1973); Mu......
  • Osborne v. Osborne
    • United States
    • Massachusetts Supreme Judicial Court
    • November 13, 1981
    ...(waiver of right to receive maintenance held void); In re Marriage of Gudenkauf, 204 N.W.2d 586 (Iowa 1973); Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978). Cf. Eule v. Eule, 24 Ill.App.3d 83, 320 N.E.2d 506 (1974) (waiver of temporary support and alimony pendente lite held void); Holliday ......
  • Request a trial to view additional results
28 cases
  • Marriage of Pendleton, In re, No. B113293
    • United States
    • California Court of Appeals
    • March 26, 1998
    ...Marriage of Spiegel (Iowa 1996) 553 N.W.2d 309, 319); New Mexico (N.M.S.A.1978, § 40-3A-4); South Dakota (Connolly v. Connolly (S.D.1978) 270 N.W.2d 44, 46); and Vermont (Stearns v. Stearns (1894) 66 Vt. 187, 28 A. 875). In Michigan, the courts are divided. (Compare Scherba v. Scherba (1954......
  • Sanford v. Sanford, No. 23175
    • United States
    • Supreme Court of South Dakota
    • March 9, 2005
    ...obligations is void and unenforceable as to both property and alimony. [¶ 15.] This Court previously held in Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978), that provisions in a prenuptial agreement purporting to limit alimony obligations are against public policy and therefore not enforcea......
  • Frey v. Frey, No. 53
    • United States
    • Court of Appeals of Maryland
    • February 23, 1984
    ...618 (La.1978) (waiver of alimony pendente lite is against public policy; not decide question of permanent alimony); Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978) (not void per se, but court has ultimate authority). Contra In re Marriage of Gudenkauf, Page 562 204 N.W.2d 586 (Iowa 1973); Mu......
  • Osborne v. Osborne
    • United States
    • Massachusetts Supreme Judicial Court
    • November 13, 1981
    ...(waiver of right to receive maintenance held void); In re Marriage of Gudenkauf, 204 N.W.2d 586 (Iowa 1973); Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978). Cf. Eule v. Eule, 24 Ill.App.3d 83, 320 N.E.2d 506 (1974) (waiver of temporary support and alimony pendente lite held void); Holliday ......
  • Request a trial to view additional results

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