Dodd v. Dodd

• Decision Date: 26 May 1939
• Citation: 129 S.W.2d 166,278 Ky. 662
• Parties: DODD v. DODD et al.
• Court: Kentucky Court of Appeals

129 S.W.2d 166

278 Ky. 662

DODD v. DODD et al.

Court of Appeals of Kentucky

May 26, 1939

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Action by Agnes B. Dodd against John L. Dodd and another to recover unpaid installments allegedly due under a separation agreement, wherein the named defendant filed an answer and counterclaim against plaintiff, making the pleading a cross-petition against the other defendant. From the judgment, the named defendant appeals, and plaintiff cross-appeals.

Affirmed on cross-appeal; reversed on the appeal.

J Verser Conner, of Louisville, for appellant.

A. C Vanwinkle and J. H. Gold, both of Louisville, for appellees.

SIMS Commissioner.

The appellee, Agnes B. Dodd, the plaintiff below, will be referred to in this opinion as the plaintiff, and the appellant, John L. Dodd, the defendant below, will be referred to as the defendant.

Mr. and Mrs. Dodd were married in 1918, and they had one child, a son, who died several years before their separation, March 29, 1934. Mr. Dodd was addicted to the use of liquor and after the death of his son he became so dissipated he attempted to destroy himself by taking iodine March 29, 1934 and on that night about 2 o'clock, his wife and father-in-law put him in the Louisville Neuropathic Sanatorium where he was confined until April 12, 1934, with a male nurse constantly in attendance. The iodine so burned Dodd's throat he could not take food or water for several days, and this, coupled with his prolonged and excessive use of liquor, put him in bad shape mentally and physically. He left the Neuropathic Sanatorium April 12th, and went to the home of a relative in Louisville, remaining there until April 23rd, when he entered the Cincinnati Sanatorium where he remained for some two weeks, and from there he went to Brown's Camp, located in New York on the Hudson, to rehabilitate himself.

During the interim between leaving the Louisville institution and entering the one at Cincinnati the defendant went to the office of his cousin, Hon. Allen P. Dodd, a prominent and highly respected attorney in Louisville, and informed him he wanted a divorce from his wife. He had no grounds upon which to obtain a divorce and as his wife did have, he wanted her to bring the suit, saying he would amply provide for her in a settlement of property rights. Mr. Allen Dodd had the full confidence of Mr. and Mrs. Dodd and he assumed the very difficult role of trying to advise both and to make a fair and equitable property settlement between them. Mr. Allen Dodd was a director in the bank of which Mr. John Dodd was vice-president and he arranged for a six months leave of absence for Mr. John Dodd in order that he might regain his health. Mr. Allen Dodd was somewhat alarmed about the mental state of his cousin and was most anxious to get his affairs arranged to his satisfaction so he might leave Louisville and enter an institution for treatment.

Mr. Allen Dodd had the plaintiff come to his office and told her that her husband wanted a divorce and that he would enter into a contract with her settling their property rights. She told Mr. Allen Dodd she did not desire a divorce, to which he replied her husband was insistent upon a divorce and was going away for treatment and there would be no property settlement unless she agreed to sue for divorce. The testimony is clear the husband was insisting upon a divorce and Mr. Allen Dodd was insisting upon a settlement of property rights and putting his cousin's property in trust, evidently hoping the trust agreement would insure Mrs. Dodd a living and would prevent Mr. Dodd from squandering his estate.

Mrs. Dodd agreed to sue her husband for divorce and Mr. Allen Dodd drew a separation agreement dated April 18, 1934, which recited the parties had separated and each desired a settlement of property rights. Mr. and Mrs. Dodd signed this separation agreement, which in substance provided her husband would pay her $200 per month alimony and maintenance during her life or until she remarried, so long as he held his position with the bank which paid him $5,000 per year; should he lose his position, or get reduced in salary, this maintenance would be subject to readjustment by the mutual consent of the parties. To secure these monthly payments the husband put in trust with the Lincoln Bank and Trust Co., trustee, under separate agreement made with it April 18, 1934, approximately $45,000 in securities and his life insurance policies in the neighborhood of $20,000. The separation agreement further provided Mr. Dodd would convey his wife their home on Everett Avenue, which the record shows was worth about $12,500 and he agreed to put it in suitable repair and in doing so he spent $1,390 on the house; that he would transfer a De Soto automobile to his wife, which he did; and it was further agreed after he had regained his health and returned home, he and Mrs. Dodd would divide the household effects, she taking such parts thereof as she might need for her comfort, the balance, including Mr. Dodd's heirlooms, should be stored in the Safety Transfer and Storage Company of Louisville, which was to issue a receipt for same to the trustee. It was further provided in this separation agreement, should the wife survive the husband and remain unmarried, then upon his death the trust should terminate and the trustee should convert the securities into cash and pay Mrs. Dodd one-third of the proceeds; that the trust created could be terminated only by the mutual consent of the parties or upon Mr. Dodd's death. It will be noted there is no obligation whatever put upon Mrs. Dodd by this separation agreement and she did not agree therein to sue her husband for divorce.

On Oct. 27, 1934, Mr. and Mrs. Dodd entered into a supplemental agreement by which they divided their household effects. By this agreement she retained all items of furniture purchased since their marriage, and in addition thereto she took practically all the household effects her husband had at the time of their marriage and which he had inherited from his mother. The agreement contained a provision to the effect if Mrs. Dodd remarried, or at her death, there would be returned all the household property taken by his wife which belonged to the mother or ancestors of her husband. The fourth paragraph of this supplemental agreement reads: "Simultaneously with the execution of this agreement and the division of the property as herein provided, the second party will file a petition against the first party for divorce, the first party agreeing to bear all costs incident to said proceedings for divorce, including any counsel fees, or, to state it differently, agrees to, in case of the filing of said divorce petition, and in addition to all other matters covered by this stipulation, and said former stipulation, be responsible for any costs or fees incident thereto."

On Dec 6, 1934, through Mr. Allen Dodd as her attorney, Mrs. Dodd filed suit in the chancery division of the Jefferson Circuit Court for divorce. The husband entered his appearance, no depositions were taken, but Mrs. Dodd and her attorney testified in person before the chancellor, who on the next day, Dec. 7, 1934, granted her an absolute divorce. Neither of the agreements settling the property rights of the parties was made a part of the divorce judgment, nor are they referred to therein. Mr. Dodd carried out all the terms of the separation agreement and paid $200 per month to Mrs. Dodd up to August 1, 1936, at which time he ceased to make these payments and on Jan. 11, 1937, she filed this action in equity for the unpaid monthly maintenance for the five months from August, through December 1936, or $1,000. She made the Lincoln Bank and Trust Company, trustee, a party defendant asking the court to direct it to pay her $1,000 from the cash in its hands under the trust agreement; or if it did not have sufficient cash to pay this sum, that the court order the trustee to sell sufficient of the securities that it held to do so. Defendant filed an answer and counterclaim against Mrs. Dodd, making this pleading a cross petition against the trustee. He pleaded he was confined in a sanatorium for treatment of a mental affliction until just a few days before he entered into this contract; that by reason of his mental and nervous condition and of the representation made to him, he did not understand the nature and effect of the contracts and did not appreciate the consequences of signing same; that he believed and understood such agreements in the contracts were temporary and not permanent in character and he signed same with the understanding and belief they could be terminated by either party at any time upon his making a fair and equitable settlement with the plaintiff. He further pleaded his salary was $5,000 per year, and his annual net income from his securities after paying the trustee's fees, life insurance premiums and taxes, amounted to $1,300; that he had paid his wife monthly allowances in the aggregate sum of $5,500 in addition to conveying her the home, and that she had up until the filing of this suit received from him in the aggregate $26,000; that she has a position paying her $1,500 per year; that she had no property at the time of their marriage and she did not help him accumulate his estate, practically all of which he inherited from his father prior to their marriage; that the separation agreements entered into with his wife are so unfair, harsh and inequitable as to be unenforceable. Defendant offered to file an amended answer, counterclaim and cross-petition alleging he entered into the separation agreements in consideration of Mrs. Dodd agreeing to institute divorce...