Harrison v. Harrison

• Decision Date: 05 May 1919
• Docket Number: No. 12865.,12865.
• Citation: 201 Mo. App. 465,211 S.W. 708
• Parties: HARRISON v. HARRISON.
• Court: Missouri Court of Appeals

211 S.W. 708

201 Mo. App. 465

HARRISON v. HARRISON.

No. 12865.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Nancy E. Harrison against James C. Harrison. From a decree awarding insufficient relief, plaintiff appeals. Reversed and remanded.

J. W. Peery, of Albany, and Garland Wilson, of Bethany, for appellant.

J. C. Wilson, of Bethany, for respondent.

ELLISON, P. J.

This is an action for divorce and alimony. There was a decree of divorce in plaintiff's favor for defendant's fault, but the trial court refused her permanent alimony, and she appealed.

The propriety of the court's action in refusing alimony depends upon a contract of separation. The parties were married in March, 1877, and lived together more than 22 years. They were comparatively poor, yet not in want for the ordinary comforts of farm life secured from property they jointly accumulated. There were eight children. In November, 1899, they parted, but in doing so entered into a written contract of separation. This contract has two antagonistic aspects. Certain recitals would indicate they were to continue to live together, while others show an immediate separation was to follow, and as such separation did, in fact, follow, and as defendant conceded in his testimony that it was to follow, we will accept the agreement in the light of the action of the parties. He gave or released to her a small tract of land worth $675, some corn in the field and in the crib, some hay, a cow, pigs, and chickens. Each took one-half the provisions on hand.

In consideration of this, she released all interest in other property and all that he might acquire in the future, including dower and homestead.

As a deed of separation, with the division of property, it was undoubtedly valid. Formerly such contracts required a trustee, but now, by our statutory rights of married women, the contract may be made immediately between husband and wife. Smelser v. Meier, 271 Mo. 178, 186, 196 S. W. 22; Rogers v. Rogers, 265 Mo. 200, 207, 177 S. W. 382; Rice & Co. v. Sally, 176 Mo. 107, 75 S. W. 398; Winter v. Winter, 191 N. Y. 462, 467-471, 84 N. E. 382, 16 L. R. A. (N. S.) 710.

But the evidence was clear that in about six months he returned to her and lived again with her as his wife, for several years, during which time he acquired property and money, estimated at as much as $12,000. Several times afterwards, he left their abode-returning and leaving again— until finally in August, 1916, she brought this action, wherein she was granted a divorce for his fault, but denied alimony on the ground that, notwithstanding reconciliation, the articles of agreement for separation barred her right. We think this was a mistaken view of the law. The return to marital relations annulled the contract. Roberts v. Hardy, 89 Mo. App. 86, 95; Knapp v. Knapp, 95 Mich. 474, 55 N. W. 353; Ahrens v. Ahrens (Old.) 169 Pac. 486; Gaster v. Gaster, 90 Neb. 529, 134 N. W. 235; Smith v. King, 107 N. C. 273, 276, 12 S. E. 57; Archbell v. Archbell, 158 N. C. 408, 415, 74 S. E. 327, Ann. Cas. 1913D, 261; Carson v. Murray, 3 Paige (N. Y.) 483, 501; Winter v. Winter, 191 N. Y. 462, 472, 84 N. E. 382, 16 L. R. A. (N. S.) 710; Haile v. Hale, 40 Okl. 101, 109, 135 Pac. 1143; Coe v. Hill, 201 Mass. 15, 23, 86 N. E. 649; Estate of Matteote, 59 Colo. 566, 151 Pac. 448; Hartl v. Hartl, 155 Iowa, 329, 332, 135 N. W. 1007; Kehr v. Smith, 20 Wall. 31, 22 L. Ed. 313.

But defendants has presented considerations which he urges should deprive plaintiff of the right to claim the agreement was nullified by the reconciliation: First, that when he returned he stated that —

"I told her we would let her contract stand, and if any more trouble was raised we had it settled."

We think this statement could not avoid the effect of the reconciliation. A contract of separation and settlement must be made after the separation or with a then present purpose to separate for causes preceding, followed by the fact of separation. It is against public policy to permit such contracts to be made except for a cause then existing and an intention to carry out. There, of course, may be a valid settlement of property between husband and wife without a separation. But that is not this case. Here it is too manifest for argument that the inability to live together and the separation were the driving causes of the division of the property. In this connection, defendant cites Singer's Estate, 233 Pa. 55, 67-69. 81 Atl. 898, 901 (Ann. Cas. 1913A, 1326). There was a contract of separation and settlement, followed by a reconciliation and resumption of marital relations, whereupon a new contract was drawn up rehabilitating and confirming the former one, "except the stipulation that the parties shall live separate and apart." There was...