Masterson v. Masterson

• Decision Date: 16 January 1901
• Citation: 60 S.W. 301
• Parties: MASTERSON v. MASTERSON. [1]
• Court: Kentucky Court of Appeals

60 S.W. 301

MASTERSON v. MASTERSON. ^[1]

Court of Appeals of Kentucky.

January 16, 1901

Appeal from circuit court, Nelson county.

"Not to be officially reported."

Action by Richard Masterson against Mary Masterson for divorce and alimony. Judgment as to alimony, and plaintiff appeals. Affirmed.

John S Kelley and N.W. Halstead, for appellant.

Geo. S & John A. Fulton and C. T. Atkinson, for appellee.

O'REAR J.

This case was formerly here on appeal, and decided May 27, 1898. 46 S.W. 20. The original action sought a divorce by this appellant from appellee; and by her counterclaim she prayed for alimony, counsel fees, and costs against appellant, and for the custody of their infant children. After voluminous preparation of the cause, the lower court adjudged the husband entitled to an absolute divorce, and decreed accordingly, awarding him the custody of the children, and denying alimony to the wife. She prosecuted the appeal above referred to, resulting in the reversal of the judgment below as to alimony and the custody of the child (Mary Ruth, by name); this court substantially fixing the amount to be paid as alimony. Pending the original controversy between the husband and wife, they agreed upon a permanent separation and, in contemplation thereof, further agreed to leave to arbitrators the matters of settlement of alimony and custody and support of the children. The arbitrators selected returned their award into court, which for some reason appears not to have been enforced, and the litigation was prosecuted. This court, however, on the former appeal, took the agreement to arbitrate as valid, and adopted the award as a just basis of settlement of the question of alimony. The court on the former appeal said, per Judge Hazelrigg "As the arbitrators selected by these parties to adjust this question heard proof and did adjust it, apparently to the satisfaction of both husband and wife at the time, although the finding by consent was subsequently abandoned, but by the wife from sheer necessity, we are convinced that the award was a just and equitable one, and the wife should be adjudged substantially the amounts fixed therein." On the return of the case, appellant attempted to make further showing as to his financial condition, quantity of estate, and ability to earn money,-- this for the purpose of reducing the amount fixed by this court as alimony. On the first trial of this case the matter of alimony was considered, much testimony having been offered on each side. But it will be observed that this court saw proper to adopt the view and judgment of the arbitrators, instead of deducing from the conflicting testimony a different basis for the allowance. We think the contract between the husband and wife in this case a valid one. In the case of Gaines' Adm'x v. Poor, 3 Metc. 503, a contract made concerning the support of the wife by the husband, in contemplation of their immediate, permanent separation, was upheld and enforced, the court using this language: "Unquestionably a contract made by a husband before marriage, or afterwards, when living in amity with his wife, to pay an allowance for her support if at any time she should separate from him, is against public policy, because it renders the wife independent, and tends to cause disagreements and to produce the separation for which it provides. In several cases such contracts have been held void. But no case has been cited in which it has been decided that such contracts are void if made in contemplation of the continuance of a previous separation, or in contemplation of an immediate separation where disagreements have taken place between the husband and wife. On the contrary, it has been decided in numerous cases that the husband's contract to support the wife, made under such circumstances, is valid. Clancy, Husb. & W. p. 397, c. 4; 2 Story, Eq. Jur. §§ 1427, 1428. The cases show that it is immaterial whether the separation has already taken place, or is to take place immediately after the deed. In either case the husband is bound by his covenant for maintenance." In Loud v. Loud, 4 Bush, 453, this court held that a contract of separation between the husband and wife and her trustee, fixing the sum to be paid for the wife in lieu of her dower in his estate, and for her maintenance, made in contemplation of immediate separation, was binding upon her; and upon the husband's death she was, by reason of this contract, denied further participation in his estate. The court in that opinion reviewed many authorities, citing with approval the following, among other expressions: "In Carson v. Murray, 3 Paige, 500, Chancellor Walworth, of New York, whilst expressing his doubts as to the public policy of upholding articles of separation between husband and wife, except made under the sanction of a court of justice, yet conceded that it had long since become the settled law of England that a valid agreement for an immediate separation between husband and wife, and for a separate allowance for her support, may be made through the medium of a trustee." In Evans v. Evans, 93 Ky. 510, 20 S.W. 605, this court, per Judge Holt, said: "By the common law every contract between husband and wife was void for want of parties. Arti...