Cowan v. Cowan

• Citation: 75 N.W.2d 920,247 Iowa 729
• Decision Date: 04 April 1956
• Docket Number: No. 48912,48912
• Parties: Wanda COWAN, Appellee, v. Ray COWAN, Appellant.
• Court: Iowa Supreme Court

Page 920

75 N.W.2d 920

247 Iowa 729

Wanda COWAN, Appellee, v. Ray COWAN, Appellant.

No. 48912.

Supreme Court of Iowa.

April 4, 1956.

Kindig & Beebe, Sioux City, for appellant.

Whicher & Davis, Sioux City, for appellee.

THOMPSON, Justice.

On May 12, 1954, the parties hereto had been wife and husband for approximately twenty years. There had been pending at that time for about five months a separate maintenance action instituted by the plaintiff. Both parties were communicants of the Roman Catholic Church. Their marital difficulties, according to the testimony of the plaintiff, were caused by the misconduct of the defendant with one Thelma Julius. Plaintiff says Thelma Julius admitted having 'relations' with the defendant, this admission being made in defendant's presence. Although he took the witness stand, defendant made no denial of this evidence.

On or about the date above set forth, the parties to the pending separate maintenance action entered into a stipulation settling their property rights, plaintiff amended the prayer of her petition to ask a divorce, and offered evidence upon which a decree was granted to her. The stipulation above referred to was apparently incorporated in the divorce decree. The parties were farm people, and the property involved was substantial, as was the share awarded to the plaintiff.

On the same date--May 12, 1954--the parties entered into another contract, in the nature of a supplement to the formal stipulation above referred to. It was not filed in the court records or made a part of the divorce decree. It is denominated a 'Collateral Agreement', and by its terms is a 'collateral agreement and stipulation to the stipulation to be filed in the matter'. The litigation here arises from Paragraph 3 of this second or supplemental agreement, which we set out:

'3. If either party hereto shall remarry prior to the time the youngest child of the parties, Charles Cowan, attains the age of twenty one years, or prior to his sooner emancipation, such party shall forfeit and be indebted to the other in the sum of $10,000, and judgment may enter accordingly.'

The parties had three sons, of whom Charles, the youngest, was 13 years of age at the time of the agreement. The defendant remained on his farm and the sons have at all times lived there with him, except that the oldest has now married and maintains his own home. On December 15, 1954, the defendant married Thelma Julius. The plaintiff thereupon made application to modify the divorce decree by incorporating therein the 'collateral agreement.' Defendant resisted, a hearing was had with evidence taken, and the trial court modified the decree as prayed and entered judgment for plaintiff for $10,000, with interest and costs.

Appellant states two propositions relied upon for reversal, which we shall consider in order. They are 1, that 'The court erred in failing to find that Paragraph III of the 'Collateral Agreement' is contrary to public policy and, therefore, void or unenforceable'; and 2, 'The court erred in failing to find that Paragraph 3 of the Collateral Agreement was unenforceable because it amounted to a penalty or forfeiture.'

I. There is no doubt that Iowa follows the universal rule that contracts in general restraint of marriage are against public policy and so are void. McCoy v. Flynn, 169 Iowa 622, 625, 151 N.W. 465, 466, L.R.A.1915D, 1064. But there are exceptions, occasioned by varying factual situations; or perhaps it is more nearly correct to say there are facts to which the rule does not apply. Thus, it is often said, in fact it is well established, that restraints against second marriages are not invalid. We said in McCoy v. Flynn, supra, page 632 of 169 Iowa, page 468 of 151 N.W.: 'That contracts in restraint of a second marriage are valid is everywhere affirmed.' And see Lewis v. Johnson, 212 Mo.App. 19, 251 S.W. 136, 138; Appleby v. Appleby, 100 Minn. 408, 111 N.W. 305, 10 L.R.A.,N.S., 590, 117 Am.St.Rep. 709, 10 Ann.Cas. 563; Stauffer v. Kessler, 81 Ind.App. 436, 130 N.E. 651; and 17 C.J.S., Contracts, § 233, page 615.

If the contract under examination here was in restraint of marriage, it was clearly of a second marriage. But the appellant says that, even with second marriages, the restraint must serve some purpose other than merely that of preventing the marriage. Many of the cases concern wills, in which the testator limits a gift to his spouse so long as she does not remarry. It is universally held a reasonable limitation, the manifest intent being to support her until she has acquired another provider. In the case at bar the appellant thinks the restriction is a restraint only and has no other apparent or actual object.

Without holding that all restraints upon second marriage are valid--that is, that under no circumstances may they offend against public policy--we hold that no such invalidity appears here. We think the true rule is stated in 17 C.J.S., Contracts, § 233, supra, at page 615, in this language:

'It has been held that the term 'general restraint' means a restraint which binds a competent person not to marry anyone at any time, and that the validity of a contract, where the restraint imposed is only against marrying a particular person, or a person of a particular class, or within a specified limited time, should be determined with reference to its reasonableness under the circumstances.'

The problem before us, in the light of the rule last quoted, is one of facts and the reasonable conclusions to be drawn from them. Some reference to authorities from other jurisdictions may be helpful. In Barnes v. Hobson, Tex.Civ.App., 250 S.W. 238, 242, 243, the governing principle is thus stated:

'We are inclined to think, in the light of all the authorities, and having in mind the basis of the rule, to wit, the interest the public has in the matter, that the term 'general restraint' as used in the rule should be construed to mean restraint which binds a competent person not to marry any one at any time, and that the validity of a contract, where the restraint it imposes is only against marrying a particular person, or a person of a particular class, or within a specified limited time, should be determined with reference to the reasonableness of such restraint under the circumstances of the particular case.'

In this case an uncle contracted to will his 17 year old niece $5,000, in property if she would 'not marry and be a good girl' until she became 22 years of age. Although here the restraint was against a first marriage, it was held to be reasonable, since the time of prohibition was limited. The contract was upheld.

Nunn v. Justice, 278 Ky. 811, 129 S.W.2d 564, 566, concerned a factual situation in which a well-to-do father and mother deeded substantially all their property to their two daughters, each deed containing this provision:

"First party shall hold and control any or all property mentioned in this deed as long as they live, so long as neither marries again. If either member of the first party marries again that member shall lose all control of the property."

The mother having died and the father remarried, the Kentucky Court of Appeals held that the deeds amounted to a contract, that the provision terminating the father's interest upon remarriage was valid, and the daughters were entitled to the full interest in and control of the property.

In Perreault v. Hall, 94 N.H. 191, 49 A.2d 812, an employe had contracted to remain with her employer as business...