Gilsey v. Gilsey
| Decision Date | 12 February 1917 |
| Citation | 193 S.W. 858,195 Mo.App. 407 |
| Parties | ANNA GILSEY, Respondent, v. MAX GILSEY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Joseph A. Guthrie, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Paul R Stinson and E. H. Busiek for appellant.
Frank Yoeman for respondent.
On December 23, 1914, plaintiff filed suit against the defendant asking for divorce and alimony. Defendant's answer contained a statement in haec verba of the following contract of separation:
"THIS AGREEMENT WITNESSETH:
WHEREAS Max Gilsey and Anna Rosnecker did on the 6th of October 1905, enter into a contract of marriage and have lived together as man and wife from and after said date, and:
WHEREAS, it is believed by both parties that it is impossible for them to continue to live together as man and wife, and it is desired for that reason to separate and make a settlement of all their property rights:
WHEREFORE, the said Anna Rosnecker Gilsey agrees to accept from Max Gilsey in full settlement of all property rights and dower interest in and to all sums of money, personal property, real estate, stocks and bonds, owned and possessed by both of them the sum of five thousand dollars,
AND THE AGREEMENT of the said Anna Rosnecker Gilsey to accept the sum of five thousand dollars in full settlement of all property rights and dower interest in and to all sums of money and interests in any and all personal properties, real estate, stocks and bonds that may be due from the said Max Gilsey to the said Anna Rosnecker Gilsey by law or contract, is hereby settled in full and the said amount is contractual and not a mere recital and all agreements and understanding between the parties hereto are fully embodied herein and set forth.
IN WITNESS WHEREOF the parties hereto have set their hands this 5th day of March, 1914.
(Signed) MAX GILSEY,
(Signed) ANNA ROSNECKER GILSEY.
WITNESSES
(Signed) MRS. A. KAMMERYELL
(Signed) MILTON J. OLDHAM."
Defendant further stated in his answer that he had complied with all the terms of said contract of separation.
Plaintiff filed her reply to said answer setting up that the contract of separation mentioned in defendant's answer was obtained through fraud and duress and for that reason it was no contract and therefore it was not binding upon the plaintiff. Upon the issue thus joined the court tried the cause and on June 4, 1915, entered a decree declaring that said contract of separation was fraudulent and void, and decreed that defendant pay plaintiff as alimony the sum of three thousand ($ 3000) dollars in gross, and the further sum of two hundred ($ 200) dollars as attorneys' fees; that thereafter, in due time, motions for new trial and in arrest of judgment were filed by the defendant. On July 3, 1915, the court upon its own motion modified the decree of alimony by providing, in effect, that the said sum of three thousand ($ 3000) dollars alimony in gross should be in addition to the amount of money already received by plaintiff through said contract of separation; that thereafter, in due time, defendant refiled his motion for new trial and in arrest of judgment; that on December 21, 1915, the court sustained the motion for new trial and the cause was again submitted to the court without the taking of any new testimony but upon the pleadings and evidence introduced prior to the rendition of the first decree of alimony. Thereafter and on said 21st day of December, 1915, the court rendered a new decree in which he found that the contract of separation pleaded by the defendant was not in the case, because the same was not properly pleaded in the answer, being pleaded as evidence and not by its legal effect, and that, therefore, plaintiff's reply seeking to nullify the contract of separation on the ground that it was fraudulently procured, should be treated as surplusage. The court further found that even if the contract of separation were well pleaded, it did not have the effect in law of releasing the defendant from the obligation to pay alimony to the plaintiff.
Defendant pleaded the contract of separation in haec verba, setting up the evidence with which he expected to prove his defense rather than pleading the legal effect of the document. For this reason a ground was afforded plaintiff for a demurrer to the answer but replying to the merits, plaintiff waived the defect. [Wilson v. Chicago Great Western Ry. Co., 190 S.W. 22; Reilly v. Cullen, 159 Mo. 322, 60 S.W. 126.] Even if it be a fact that the contract of separation was not well pleaded, the matter was cured by the plaintiff in her reply wherein she set up that said contract of separation was procured by fraud and, therefore, no defense to the suit for alimony. Plaintiff having joined issue on this point, under the doctrine of "express aider" the matter was cured and she cannot complain. [Hughes v. Carson, 90 Mo. 399, 2 S.W. 441; Garth v. Caldwell, 72 Mo. 622; Donaldson v. County of Butler, 98 Mo. 163, 11 S.W. 572.]
The court below, therefore, erred in not taking account of the contract of separation as set up in defendant's answer. As this cause must be retried, it is necessary for us to decide whether the contract of separation pleaded in this case is a bar to plaintiff's alimony. That post nuptial contracts of separation, such as the one in the case at bar are lawful and valid has been decided many times. [McBreen v. McBreen, 154 Mo. 323, 55 S.W. 463; Roberts v. Hardy, 89 Mo.App. 86; Fisher v. Clopton, 110 Mo.App. 663, 85 S.W. 623.] It is also held that such contracts may be so drawn as to lawfully provide that in the event the wife thereafter shall file suit for divorce she shall not be entitled to alimony. [Parsons v. Parsons, 62 S.W. 719 (Ky.); ...
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