Gallemore v. Gallemore
| Decision Date | 01 August 1927 |
| Citation | 114 So. 371,94 Fla. 516 |
| Parties | GALLEMORE v. GALLEMORE. |
| Court | Florida Supreme Court |
Rehearing Denied Oct. 13, 1927.
Suit by John R. Gallemore against Jennie R. Gallemore for divorce. From a decree for the complainant, defendant appeals.
Affirmed.
Syllabus by the Court
Contracts intended to facilitate procurement of divorce are illegal as contrary to public policy. Contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy.
'Divorce suit' is triangular proceeding, in which husband, wife and state are parties; preservation of marital relation is deemed essential to public welfare. A suit for divorce is in reality a triangular proceeding, in which the husband, the wife, the state are parties. The marital relation, unlike ordinary contractual relations, is regarded by the law and the state as the basis of the social organization, and the preservation of that relation is deemed essential to the public welfare. [Ed. Note.--For other definitions, see Words and Phrases, Second Series, Divorce Suit.]
Under early English common law, agreements by husband and wife to live separate were illegal, but were later considered legal. Under the early English common law, agreements on the part of husband and wife to live separate and apart were illegal as against public policy, but later judicial opinion experienced a change in public policy on this point.
Generally separation contracts by husband and wife contemplating separation in praesenti or continuance of existing separation, predicated on moving cause, will be upheld. The general rule both in England and in this country appears to be that such agreements, when they contemplate a separation in praesenti or the continuance of an existing separation, if predicated on a moving cause, and not on mutual volition, or the mental caprice of the parties, will be upheld.
Bona fide agreements as to alimony or adjustment of property rights, though in contemplation of divorce, will be upheld if not directly conducive thereto. Bona fide agreements relating to alimony or the adjustment of property rights between husband and wife, though in contemplation of divorce will be upheld, if not directly conducive to the procurement of a divorce.
Appeal from Circuit Court, Polk County; H. C. Petteway, judge.
Olliphant & Olliphant, of Bartow, and Daniel Riley MCMaster, of Chicago, Ill., for appellant.
Chester M. Wiggins, of Bartow, for appellee.
Appellant and appellee were married in Illinois October 18, 1893. They lived together as man and wife in Illinois, Missouri, and California till August, 1922, at which time in the last named state they entered into an agreement for the division of their community property accumulated during coverture. This agreement being executed, and their community property divided satisfactory to both, appellee took up his residence with his two daughters in an apartment, where he continued to live till January, 1923, when the agreement to divide their community property was modified to permit appellee to pay appellant a lump sum of $1,000 in lieu of the one item of §65 per month for her maintenance, as provided in the original contract. The §1,000 having been paid, appellee at once left California for Florida.
In March, 1925, appellee filed his bill for divorce in Polk county, Fla., alleging desertion and refusal of the appellant to live with him, and that he had made ample provisions for the support of appellant. Appellant filed her answer, in which was incorporated a demurrer to the bill for divorce denying all the material allegations thereof, and alleging that the contract for the division of their community property was procured by duress, and was illegal and void as against public policy. Testimony was taken by a special master, and on final hearing the chancellor found the equities to be with the appellee (complainant in the divorce suit), and decreed him an absolute divorce from appellant. Appeal is taken from that decree.
The only question considered here is whether or not the contract for the division of the community property was illegal and void as against public policy. In other words, does it in any way promote the procurement of a divorce?
The law is well settled that contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy. 9 R. C. L. 254, and cases there cited. The reason for the rule as defined by the law-writers is that a suit for divorce is in reality a triangular proceeding in which...
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Bates v. Bates
...Previously, the Court had taken the position that prenuptial agreements were against public policy. See, e.g., Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371, 372 (1927) ("The law is well settled that contracts intended to facilitate or promote the procurement of a divorce will be declare......
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... ... nothing in the record to impeach this contract, and it is ... conclusive on the parties." ... In the ... case of Gallemore v. Gallemore, 94 Fla. 516, 114 So ... 371, it appears that husband and wife entered into a ... separation agreement, and the former subsequently ... ...
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...143, 85 L.Ed. 456; Welsh v. Welsh, 230 Mo.App. 1006, 93 S.W.2d 264; Dennison v. Dennison, 98 N.J.Eq. 230, 130 A. 463; Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371. The application of the rule recognized in the recent decisions on the subject leads to the conclusion that the agreement in......