Maisch v. Maisch

• Citation: 87 A. 729,87 Conn. 377
• Parties: MAISCH v. MAISCH.
• Decision Date: 25 July 1913
• Court: Connecticut Supreme Court

87 A. 729

87 Conn. 377

MAISCH

v. MAISCH.

Supreme Court of Errors of Connecticut.

July 25, 1913.

Wheeler, J., dissenting.

Appeal from Superior Court, New Haven County; Edwin B. Gager and William H. Williams, Judges.

Action by Lillie A. Maisch against Charles O. Maisch for breach of contract to pay certain moneys in. lieu of alimony. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff and her then husband, the defendant, while resident in South Dakota, there entered into a contract reciting that the plaintiff had commenced an action for divorce in a South Dakota court; that the defendant had appeared and answered; that it was desirable to settle their properly affairs and rights independently of the divorce proceedings, and to agree upon the amounts to be allowed the plaintiff as attorney's fees, costs, and alimony rather than to submit these matters to the court for adjudication, leaving to the court the question only of whether the plaintiff was entitled to an absolute divorce. The contract then provided for the payment of agreed allowances and costs and of $20 a week, in the event of a decree of divorce being granted, during the defendant's life and until the death or marriage of the plaintiff. After the execution of the contract and on the same day a decree of absolute divorce was granted to the plaintiff. Plaintiff has not remarried and brings this action to recover damages for the defendant's neglect and refusal to make the payments required by the agreement. A demurrer to the complaint on the ground that the contract was against public policy and void was overruled (Gager, J.), and the defendant answered denying that anything was due under the contract, and in a second defense again setting up that the contract was against public policy and void. It is not pleaded that the divorce proceedings were in fact collusive or fraudulent.

Nichols C. Downs and Daniel F. B. Hickey, both of Stamford, for appellant.

Leonard M. Daggett, of New Haven, for appellee.

BEACH, J. (after stating the facts as above). The principal question is whether the contract sued on is on its face, and without a showing that it was in fact intended or used for collusion or suppression of evidence, so contrary to the public policy of Connecticut that it cannot support the judgment. It is everywhere agreed that contracts for the purpose of facilitating divorce are contrary to public policy, as where the agreement is to assist each other in obtaining the divorce. Palmer v. Palmer, 26 Utah, 31, 72 Pac. 3, 61 L. R. A. 641, 99 Am. St. Rep. 820. Or for the nonappearance of one of the parties, as in Belden v. Munger, 5 Minn. 211 (Gil. 169), 80 Am. Dec. 407; Adams v. Adams, 25 Minn. 72. Or where money is paid in consideration of the agreement of the wife to prosecute and sue for divorce, as in Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. But there is a difference of opinion as to the validity of contracts made after divorce proceedings have been independently commenced or determined upon and where the agreement is in fact an amicable arrangement as to the amount of alimony to be paid in the event of a divorce being granted. In some jurisdictions contracts of this general character are permitted and even favored. Burnett v. Paine, 62 Me. 122; Badger v. Hatch, 71 Me. 562; Snow v. Gould, 74 Me. 540, 43 Am. Rep. 604; Warren v. Warren, 116 Minn. 458, 133 N. W. 1009; Randall v. Randall, 37 Mich. 565; Palmer v. Fagerlin, 163 Mich. 345, 128 N. W. 207; Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102. In other jurisdictions such contracts are held to be contrary to public policy. Lake v. Lake, 130 App. Div. 47, 119 N. Y. Supp. 686; Speck v. Dausman, 7 Mo. App. 165; Muckenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345; Hamilton v. Hamilton, 89 Ill. 349; Seeley's Appeal, 56 Conn. 202, 14 Atl. 291.

According to the law of South Dakota, the contract in suit appears to be valid. By that law husband and wife may contract with each other respecting property, and they may agree in writing to an immediate separation. Code, §§ 98 and 99. In Burgess v. Burgess, 17 S. D. 44, 95 N. W. 279, a woman, after divorce, sued her former husband for specific performance of a contract to convey real property, made in contemplation of the divorce proceedings, in lieu of alimony. The court said: "The law of this state expressly permits contracts between husband and wife with respect to the property of each, but forbids certain agreements as collusive which are intended to alter or promote the dissolution of the relation of husband and wife. Contracts relating to alimony are being constantly made and enforced, while agreements which contravene the policy of the law in relation to granting divorces are everywhere regarded as illegal. * * * The plaintiff was not asked to commit, or to appear to have committed, or to be represented in court as having committed, any act constituting a cause for divorce. She was not asked to refrain from appearing in the contemplated action for divorce, nor does it appear that she ever agreed to refrain from making a defense. It is true that she did not appear, relying * * * on the defendant's express promise, and was thus deprived of an opportunity to have her property rights and the property rights of her daughter determined by the court. But it does not affirmatively appear, and we think it cannot be inferred, that she made any agreement as the consideration of receiving the land, which, if shown, would have required the court to deny her husband a divorce on the ground of collusion." Such being the law of South Dakota, the contract was valid at the time and place when it was made and gave rise to an enforceable obligation. That being so, the obligation is enforceable here, unless its enforcement would contravene some important public policy of the state or the canons of morality established by civilized society. Minor on Conflict Law, p. 9.

That the contract was not contrary to any...