Johns v. Johns
| Citation | 222 S.W. 492,204 Mo.App. 412 |
| Parties | SADIE JOHNS, Appellant, v. GEORGE W. JOHNS, Respondent |
| Decision Date | 08 June 1920 |
| Court | Court of Appeal of Missouri (US) |
Submitted on Briefs May 7, 1920.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Vital W. Garesche, Judge.
AFFIRMED.
Judgment affirmed.
Jas. A Ryan and Kinealy & Kinealy for appellant.
(1) A separation agreement between husband and wife, which is fair and reasonable and where the separation has taken place or immediately follows, will not be repudiated by the courts. Fisher v. Clopton, 110 Mo.App. 663. (2) It will not be upheld if the parties are living together or continue so to do. Speiser v. Speiser, 188 Mo.App. 328. (3) If after separation under an agreement the parties come together and resume their relation as husband and wife the separation agreement becomes abrogated. Roberts v. Hardy, 89 Mo.App. 88; Harrison v. Harrison, 211 S.W. 708.
William Hilkerbaumer for respondent.
(1) Husband and wife have full power and authority, as to their property rights, to contract with each other, and such contract will be enforced at law just as if they had contracted with third persons. Rice, Stix & Co. v Sally, 176 Mo. 107; O'Day v. Meadows, 194 Mo. 614. (2) When husband and wife enter into a contract of settlement and separation in which all money and property rights and obligations are adjusted in consideration of the husband paying her a certain sum of money, she cannot then bring an action for divorce and alimony and expect to repudiate the contract without tendering back the sum received by her under the contract. Gilsey v. Gilsey, 198 Mo.App. 505.
Plaintiff brought her action for divorce against the defendant, on the ground of desertion continued for a period of more than one year next prior to the filing of the petition, which was on March 16, 1917. The date of the desertion is given as September 25, 1914, and alleged to have been without cause. Stating that the defendant is an able-bodied man and earns good wages, plaintiff prays alimony and suit money pending the suit and a reasonable sum by way of permanent alimony in the final decree.
The answer, after a general denial, sets up that on September 18, 1914, plaintiff and defendant entered into an agreement under which plaintiff received and accepted the sum of $ 700 in cash, and other good and valuable considerations, in lieu of all claims for alimony and maintenance which had accrued or which might accrue in future. A general denial by way of reply was filed.
Hearing the cause the court awarded a divorce to plaintiff but refused to allow any alimony or suit money. Plaintiff thereupon filed a motion for new trial, attacking so much of the decree as refused to allow alimony and suit money. This being overruled, plaintiff has appealed.
The right to the divorce is not contested. The sole question here involved is as to the action of the trial court in refusing to allow alimony, etc.
It appeared that the parties were married on March 31, 1914, and separated on September 25, 1914. A separation had been contemplated, at least by defendant, some little time prior to that date, and on September 18, 1914, they entered into an agreement of separation. It is recited in this agreement that the
This was signed by the parties.
Plaintiff testified that a short time prior to September 25th defendant became angry with her and said that they would break up housekeeping and sell the house, which he did, and plaintiff was compelled to vacate the house because it had been sold and rented; that she had since often asked defendant to live with her, and that her mother and friends had done the same, but he refused; that defendant earned $ 85 a month. Prior to this dispute there had been no serious differences between them. Plaintiff also testified that she joined in the deed to the property; that she was compelled to do so or get out and get nothing; that she received the $ 700 mentioned in the agreement and part of the furniture; that the real estate sold for $ 1800. This was the only property that she knew of that her husband owned. She had been married previously. When this agreement between them was made and signed they were living together and continued to do so until September 25th, of the same year, when she moved away. Between the 18th and 25th of September they lived together as they had prior to that time. Within four or five days after the agreement was signed plaintiff left the house because the purchaser had rented it and the party to whom it was rented wanted to move in. She testified that they signed the agreement on September 18th and that she knew she was compelled to get out of the house because it was rented, and that she and her husband maintained marital relations after the contract was signed, that is until she left on September 25th. Defendant denied this and stated that while they had lived together in the same house, and in the same room, they had no marital relations between the 18th and 25th of September and for some time prior to that.
Defendant called as a witness by plaintiff, testified that he is a watchman at a bank and had been employed there for about eighteen years; that his salary is about $ 85 a month. On September 18, 1914, he owned a cottage on Newstead avenue in the city of St. Louis, which he then sold for $ 1800, and has no personal property left except his wearing apparel. Defendant identified his signature to the agreement and stated that it was executed September 18th. He testified that at the time this agreement was executed the house was all furnished; that he had put $ 247 worth of furniture...
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