Fincham v. Fincham

• Decision Date: 26 January 1946
• Docket Number: 36404.
• Parties: FINCHAM v. FINCHAM.
• Court: Kansas Supreme Court

165 P.2d 209

160 Kan. 683

FINCHAM v. FINCHAM.

No. 36404.

Supreme Court of Kansas

January 26, 1946

Rehearing Denied March 15, 1946.

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Action by Arthur S. Fincham against Frances Marie Fincham for divorce and for a full settlement of all claims of defendant wherein the defendant filed a cross-petition seeking cancellation of an antenuptial contract. From the portions of the judgment denying a divorce, holding the separation paragraphs of the contract void and directing him to make payments for support, the plaintiff appeals, and from the portion of judgment which upheld a part of the contract, the defendant cross-appeals.

Affirmed in part and reversed in part and case remanded with directions.

THIELE J., and HARVEY, C. J., dissenting in part.

Syllabus by the Court.

1. The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties, following In re Estate of Cantrell, 154 Kan. 546, 119 P.2d 483, and cases therein cited.

2. Public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together and to prevent separation.

3. A separation provision in an antenuptial contract which permits the parties to separate at any time and for any cause whatsoever, whether legal or otherwise, and in which the wife relinquishes all rights she may have against the husband personally and in and to his property, on terms that are unreasonable and inequitable, tends to encourage separation and to defeat the marriage relation, is contrary to public policy and unenforceable by either party.

4. By virtue of express provisions contained in G.S.1935, 60-1506 the district court may refuse a divorce and for good cause shown make an equitable division and disposition of property of the parties.

5. In making an equitable division and disposition of property courts may take into consideration an invalid antenuptial contract, as well as all other pertinent factors, for the purpose of reaching a proper, equitable and just settlement under all the circumstances but in making such settlement they cannot give separate effect to an indivisible provision of the contract merely because, if standing alone, such provision would have been enforceable.

6. The record in an action for divorce and for a full settlement of all claims of defendant, the wife, in accordance with a provision of an antenuptial contract pertaining to a separation of the parties, and in which the defendant contested the divorce action and by cross-petition sought cancellation of the antenuptial contract in toto, examined and held: (a) The contract violated public policy; (b) plaintiff's contention that the separation settlement provision, set out in the opinion, constituted a mere option to the wife, is not sustained; (c) plaintiff's action was not predicated on the theory the marriage settlement provision was a mere option which the wife could accept or reject but it was based on the ground the provision constituted a legal contract with which she was bound to comply upon tender of the amount specified; (d) the separation settlement provision was unjust and inequitable in itself and if upheld also nullified a fair and equitable provision made for the benefit of the wife in the event she survived him as his widow; (e) the judgment rendered for future separate support and maintenance of the wife, under circumstances narrated in the opinion, was improper.

W. D Jochems, of Wichita (George Barrett, of Pratt, on the brief), for appellant.

John Madden, Jr., of Wichita, and Paul R. Wunsch, of Kingman, for appellee.

WEDELL Justice.

This was an action for divorce and for a full settlement of all claims of defendant, the wife, in accordance with a certain provision of an antenuptial contract pertaining to a separation of the parties.

The grounds alleged for a divorce were defendant's extreme cruelty and gross neglect of duty. Plaintiff tendered to defendant in court the sum of $2,000, that being the amount specified in the settlement provision of the contract in the event of a separation of the parties for any cause.

The defendant contested the divorce and by cross-petition sought cancellation of the entire antenuptial contract on the grounds it was contrary to public policy and was otherwise unenforceable for various reasons to be stated later. The district court refused plaintiff a divorce and struck down the settlement provision of the contract on the ground it was unreasonable and unjust, violated public policy and was void. In other respects the contract was sustained. Judgment was also rendered for the separate support and maintenance of the wife over the objections of plaintiff. Both parties filed motions for a new trial which were overruled. Plaintiff has appealed from those portions of the judgment which denied him a divorce, which held the separation paragraph of the contract void, from the order allowing an amendment of defendant's cross-petition after the court had filed its findings of fact, from the judgment for support and maintenance and from the order overruling his motion for a new trial. Defendant has cross-appealed from that portion of the judgment which upheld any part of the antenuptial contract, contending the contract was not fairly and understandingly made, and from the order overruling her motion for a new trial.

We shall begin with a consideration of the primary appeal of the plaintiff and shall continue to refer to the parties as plaintiff and defendant. While counsel for plaintiff argue that, in their opinion, plaintiff was entitled to a divorce, they also concede that in view of the conflicting testimony the court was vested with a wide discretion in determining whether it would grant a divorce. In other words, they do not argue that specification of error. We, therefore, shall regard it as having been abandoned. Under these circumstances it will serve no useful purpose to narrate the evidence pertaining to the alleged grounds for divorce.

A brief narrative of some facts will, however, be helpful on other aspects of the appeal. Plaintiff was a businessman sixty-five years of age at the time of the marriage at Albuquerque, New Mexico, on June 23, 1941. He is worth approximately $150,000 to $160,000. His property consisted mostly of lands. His annual income ranged between $10,000 and $12,000. His home was in Pratt, Kansas. He had four adult children by a former marriage. He met defendant in December, 1940, at Colorado Springs, where she was employed as a hotel clerk at $10 per week. She also did a small amount of art work and sold an occasional picture which she painted and from which she realized small returns. Defendant was forty-seven years of age and also had been married. She had one married son. She owned a small home in Enid, Oklahoma, worth approximately $1,500, had about $1,000 cash and a 1937 Dodge automobile, which she sold for $350.

The parties had a brief courtship prior to their marriage and lived in Colorado Springs until September 8, 1942, when they moved to Pratt. Plaintiff purchased a modest five room brick house for $6,000. The house was comparatively new and well arranged. The value of the household furnishings was $1,500. In the antenuptial contract each party waived and relinquished all claim to and control over the property of the other. The contract made provision for defendant in the event she survived him as his widow as follows: 'In consideration of the contemplated marriage and the covenants of Frances Marie Rancier hereinbefore set forth, Arthur S. Fincham hereby covenants that the said Frances Marie Rancier shall have and receive out of his property and estate at the time of his death, if she shall then be his widow: (1) all statutory allowances and exemptions, together with the homestead rights; (2) an undivided one-fifth (1/5) interest in and to all other property, whether real or personal, of which he the said Arthur S. Fincham may die seized and possessed.'

The separation agreement upon which plaintiff relies reads 'It is further mutually agreed between the parties hereto that if, after the solemnization of said marriage and for any cause, the parties hereto separate and live separate and apart for any reason whatsoever, then the said Arthur S. Fincham, upon demand of the said Frances Marie Rancier, shall pay to her the sum of Two Thousand dollars ($2,000) in cash, for and as a complete settlement of every claim that the said Francis Marie Rancier may or shall have against the said Arthur S. Fincham by reason of said marriage; and upon the receipt of said sum of Two Thousand dollars ($2,000), the said Frances Marie Rancier shall release and discharge the said Arthur S. Fincham from further liability on any account, and shall no longer be entitled to share in the estate and property of the said Arthur S. Fincham. And the said Frances Marie Rancier covenants and agrees that in such a contingency she does hereby renounce all claim against the property and estate of the said Arthur S. Fincham, of every kind and description, and this contract shall be accepted by any court as a full and complete settlement and satisfaction of the property rights of the parties her...