Hartley v. Hartley

• Decision Date: 03 June 1947
• Citation: 305 Ky. 350
• Parties: Hartley v. Hartley.
• Court: United States State Supreme Court — District of Kentucky

305 Ky. 350

Hartley v. Hartley.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

June 3, 1947.

1. Divorce; Husband and Wife. — Agreements between husband and wife settling property rights generally are upheld and property thus disposed of is not subject to, or affected by, an order of restoration in divorce proceedings which were pending or anticipated by the parties at the time the agreement was entered into.

2. Divorce; Husband and Wife. — Under property settlement agreement which provided that it should be in force whether or not a divorce was granted either husband or wife in "any action that may be brought by either of the parties hereafter," transfers of properties mentioned in agreement were binding though divorce action thereafter filed was dismissed and parties reconciled, and none of the property covered by agreement was subject to an order of restoration in another divorce action instituted after the reconciliation. Civil Code of Practice, sec. 425.

3. Divorce. — Under property settlement agreement, proceeds from sale of property received by wife under the agreement became her individual property, and, although the parties thereafter were reconciled and wife purchased property with the proceeds and caused the property to be conveyed to herself and husband jointly, marriage was the only consideration for such conveyance to husband, and conveyance of his interest to wife should have been ordered when the parties were subsequently divorced. Civil Code of Practice, sec. 425.

4. Divorce. — Wife, who had agreed in property settlement agreement to forego her right to require husband to pay her attorney's fees in the event of a divorce proceeding, could not reap benefits of property provisions in the agreement and at the same time complain that fee allowed her in divorce action for attorney's services was inadequate, but judgment in that respect could not be disturbed, where husband had made no complaint in respect thereto and it appeared that that part of the judgment had been satisfied.

5. Divorce. — In divorce action, where both parties testified as to existence of property settlement agreement and substantially as to its terms, and agreement itself was filed by wife without objection by husband, wife could rely upon agreement though she did not plead it.

6. Divorce. — In divorce proceedings, the court must inquire into ownership of property in order to determine restoration rights, and ownership of property in specie need not be pleaded.

Appeal from Jefferson Circuit Court.

T.A. Luman for appellant.

Hardin H. Herr and Lawrence & Hays for appellee.

Before W. Scott Miller, Judge.

OPINION OF THE COURT BY VAN SANT, COMMISSIONER.

Reversing in part.

This is the fourth action for divorce which has been instituted by appellant against appellee. The first three were dismissed before judgment. Before the third action was filed the parties entered into the following written contract:

"Agreement as to Alimony

and Property Division

"This agreement made and entered into by and between Reba Hartley and Charles A. Hartley this 1st day of April, 1944, at Springfield, Ohio, witnesseth:

"That whereas unhappy differences have arisen between the parties hereto and whereas they desire to settle their matters with respect to their real estate, personal property, the right of visitation and alimony, it is agreed,

"That in consideration of the mutual promises from one to the other and other valuable considerations as hereinafter contained, the said parties agree as follows:

"That said Charles A. Hartley agrees to deed all his right title and interest in and to the real estate as hereinafter set-forth free of any rights that he may have in said real estate, subject to a mortgage, which mortgage the said Reba Hartley assumes and agrees to pay.

"Situate in the County of Clark and in the City of Springfield, and bounded and described as follows, viz.

"Being Lot No. 5914 as the same is numbered and designated on the record plat of McNally's Addition to said City of Springfield, said plat being recorded in Vol. 5, Page 42, of the Plat Records of Clark County, Ohio.

"The said Charles A. Hartley agrees to release and relinquish any and all right to any War Saving Bonds that the said Reba Hartley has in her possession and a bank account in the sum of $200.00.

"That in consideration thereof the said Reba Hartley agrees to pay the said Charles A. Hartley the sum of $200.00.

The said Reba Hartley shall have as her own any and all household goods free of any rights of the said Charles A. Hartley, therein.

"The said Charles A. Hartley shall have the right to have said minor child of the parties on Sunday of each week by calling for said child at the home of the said Reba Hartley at 1:00 P.M. o'clock and returning said child to the home of Reba Hartley by not later than 3:00 P.M. o'clock. Right to visit said child at any other reasonable time.

"It is further agreed that the said Reba Hartley shall have the care and custody of said minor child of the parties hereto, unless the same is changed by the mutual consent of the parties, or by order of a Court in a divorce action brought by either of the parties, but until the same is changed the said Charles A. Hartley shall pay to the said Reba Hartley for the support of said child the sum of $8.00 per week, beginning upon the signing of this agreement.

"The said Reba Hartley does hereby release the said Charles A. Hartley from all obligations of future support for herself and she does further release and relinquish unto the said Charles A. Hartley, his heirs, executors, administrators or assigns, all the rights or claims by way of dower, inheritance and descent in and to the real property of the said Charles A. Hartley, now owned or hereinafter acquired, and any and all rights or claims, to a distributive share of his personal estate, now owned or hereafter acquired, and all claims for an allowance for year's support, and to reside in his mansion house, and all right or claims as widow, heir, distributee, survivor or next of kin, in or to the estate of the said Charles A. Hartley, whether real estate or personal, and whether now owned or hereinafter acquired, and all other rights and claims of every kind and nature arising or growing out of said marriage relation.

"And the said Reba Hartley, for the consideration of the agreements of said Charles A. Hartley, herein contained, does further covenant and agree that she will not in any manner, incur or contract any debts on the credit of the said Charles A. Hartley, and will not incur any liabilities on his behalf, and that, in any divorce action brought by either of the parties hereto, the said Reba Hartley will not ask or apply for any further or future allowance for counsel fees, or any alimony either temporary or permanent, but the division made this day by and between the parties hereto as evidenced by this agreement shall be in full satisfaction of all such claims and demands, including costs of suit.

"And in consideration of the said release of the said Reba Hartley, the said Charles A. Hartley does hereby release and relinquish unto the said Reba Hartley, her heirs, executors or assigns, administrators, all rights or claims by way of dower inheritance and descent, in and to the real estate of the said Reba Hartley now owned or hereafter acquired, and any and all right or claims to a distributive share of her personal estate now owned or hereafter acquired, and to reside in her mansion house, and all rights or claims as widower, heir, distributee, survivor or next of kin, in and to the estate of the said Reba Hartley, whether real or personal, and whether now owned or hereafter acquired, and all other rights and claims of every kind and nature arising or growing out of said marriage relation.

"It is further agreed by the parties hereto that this agreement shall be in effect and in force whether a divorce is or is not granted to the said Reba Hartley or the said Charles A. Hartley, in any action that may be brought by either of the parties hereafter.

"It is mutually agreed that each party hereby waives any right he or she may have, to administer the estate of the other party upon the death of such other party.

"In witness whereof, the parties have hereunto set their hands...