Peters v. Peters

• Decision Date: 29 November 1933
• Citation: 169 A. 298,20 Del.Ch. 28
• Court: Court of Chancery of Delaware
• Parties: ANN ROSSELL PETERS, v. DANIEL C. PETERS

169 A. 298

20 Del.Ch. 28

ANN ROSSELL PETERS, v. DANIEL C. PETERS

Court of Chancery of Delaware, New Castle

November 29, 1933

BILL FOR SPECIFIC PERFORMANCE. The complainant and defendant are alleged by the bill to be husband and wife. They intermarried on September 9, 1919. One child was born to them, a daughter who is now about five years of age. After the birth of their child disagreements arose between them which disagreements continued through the years 1928, 1929 and 1930 and culminated in July of 1930 in a mutual decision to live apart. After such separation, viz., on July 30, 1930, the complainant and defendant entered into an agreement in writing under their hands and seals providing inter alia for the support of the complainant and her minor child. The agreement is as follows:

"This agreement, made this thirtieth day of July, A. D. 1930, by and between Daniel C. Peters, of the City of Wilmington, New Castle County and State of Delaware, party of the first part and Ann Rossell Peters, his wife, of the said City of Wilmington, party of the second part,

"Witnesseth:

"Whereas the parties of the first and second parts, husband and wife have separated as a result of disagreements between them and said parties desire to enter into an arrangement for the support and maintenance of the party of the second part and Ann Peters, the minor child of said parties of the first and second parts;

"Now therefore it is hereby agreed by the parties hereto as follows:

"1--The party of the first part hereby agrees to pay the sum of One Hundred and Fifty Dollars ($ 150.00) per month, on the first day of each month, beginning August, 1930, for the support and maintenance of the party of the second part and the said Ann Peters, child of the said parties of the first and second parts, said child being of the age of two years. The said party of the first part hereby further agrees that if both of the parties should survive the mother of the said party of the first part, that then and from that time, he, the said party of the first part, will pay the sum of Two Hundred Dollars per month for the support and maintenance of the said party of the second part and Ann Peters, said payments to be made at the times and under all other the terms and conditions provided in this agreement.

"2--The party of the first part further agrees that the party of the second part may take and remove from the residence in which the parties hereto have formerly resided, the following personal property, viz: (Here follows enumeration of certain personal chattels.)

"3--The monthly payments of One Hundred and Fifty Dollars ($ 150.00) hereinabove provided for shall be made by the party of the first part to the party of the second part, and the party of the second part shall use the same in her discretion for the maintenance of herself and the said child.

"4--The party of the second part shall have the care and custody of said child, and the party of the first part shall have the right to see the said child when she may be living with her mother, at reasonable times and places. If dispute should arise between the parties of the first and second parts as to when the said party of the first part shall be permitted to see the said child, it is hereby contemplated that the party of the first part may make an application to the Resident Judge of the Superior Court of the State of Delaware, in and for the County of New Castle to fix definitely the times and places when he shall have the right to see the said child.

"5--The party of the second part accepts the provisions herein made for the support of herself and said child and agrees that, so long as the covenants of the party of the first part herein shall be performed by him she will not institute any proceeding, civil or criminal, to compel the party of the first part to make any provision for the support of herself and said child.

"6--The parties of the first and second parts each covenant, promise and agree not to do anything to alienate the affection of said child from the other.

"In witness whereof, the parties hereto have duly executed this agreement, in duplicate, the day and year first hereinabove written.

"Daniel C. Peters [Seal]

"Ann Rossell Peters [Seal]

"In the presence of:

"C B. Evans as to A. R. P.

"Robt. H. Richards as to D. C. P."

The defendant made payment to the complainant of the specified one hundred and fifty dollars per month so long as his mother lived and upon her death on October 25, 1930, made the monthly payments of two hundred dollars as required by the agreement until January of 1933. At that time he notified the complainant that he would no longer pay to her two hundred dollars a month as he had agreed to do, and that thereafter he would pay her only one hundred and twenty-five dollars per month. The bill alleges that the complainant is in necessitous circumstances, that the defendant knows that fact, and is seeking by force of those circumstances to compel the complainant to submit to and accept the reduced monthly payments which the defendant has in violation of his agreement undertaken to make in discharge of his obligations to her. The complainant refused to accept the sums tendered to her on the reduced monthly basis, and prays the decree of this court directing the defendant specifically to perform the agreement according to the terms thereof.

The defendant has demurred to the bill on the grounds set out in the opinion of the Chancellor.

Demurrer overruled.

David J. Reinhardt, Jr., and James T. Mullin, for complainant.

James R. Morford, of Marvel, Morford, Ward & Logan, for defendant.

OPINION

THE CHANCELLOR:

The first ground of demurrer is that equity is without jurisdiction because the complainant has a sufficient remedy at law. That the complainant, the wife, could not sue the defendant, her husband, for damages for breach of the contract here sought specifically to be enforced, is conceded by the solicitor for the defendant. Plotkin v. Plotkin, 2 W. W. Harr. (32 Del.) 455, 125 A. 455, settles that proposition so far as the Superior Court can settle it. Where is there then any remedy, not to say any sufficient remedy, at law for the complainant on the contract? The defendant answers by saying, her legal remedy is under the so-called non-support provisions of the Delaware statutes. Revised Code 1915, §§ 3034-3046. Section 3034 declares it to be a misdemeanor for any husband, without just cause, to refuse to support his wife in destitute or necessitous circumstances, or for any parent without lawful excuse to refuse to provide for the support and maintenance of his or her child under the age of sixteen years, punishable by fine of not more than five hundred dollars or by imprisonment for not over one year. Instead of the imposition of fine or imprisonment, the court "having regard to the circumstances, and to the financial ability or earning capacity of the defendant," may make an order, subject to change from time to time, directing the defendant to pay a certain sum periodically for the support of the wife or child, and adopt measures for its enforcement. Sections 3037, 3040.

The support provisions supply to the wife no remedy at law for the enforcement of her contract by way of damages. That is apparent. It is apparent for three reasons. First, the action is a criminal one, in which the State of Delaware is the plaintiff. While the Court of General Sessions in State v. McCullough, 17 Del. 274, 1 Penne. 274, 40 A. 237, 238, stated that a prosecution under the non-support statute "is not, strictly speaking, a criminal proceeding," yet the Supreme Court in Donaghy v. State, 6 Boyce (29 Del.) 467, 100 A. 696, distinctly held the offense to be a misdemeanor. The wife has no control over the prosecution for non-support. She cannot compel its institution. While she is the beneficiary of any order that may be made, yet the matter is one that lies in the domain of public concern and is so far treated as such that the State and not she controls the proceeding from beginning to end. Second, any order looking to the support of the wife or child, is made in the light of the circumstances and the financial ability or earning capacity of the defendant. As the terms of the order are thus not referable to any prior contract of the defendant for definition, the order cannot therefore be said in any sense to be in enforcement of a contract. Third, if the complainant should remove from the State of Delaware, the defendant could not then be prosecuted in this State for nonsupport [Sweetman v. State, 4 W. W. (34 Del.) Harr. 329, 152 A. 588], which again emphasizes the fact that the non-support proceedings are entirely dissociated from any consensual obligations of the defendant.

It is clear then that the complainant has no remedy whatever, not to speak of a sufficient remedy, at law upon the contract. The case of McKinnon v. McKinnon, 2 Pa. D. & C. 108, is not in point, because it appears to have been an attempt in equity specifically to enforce the marriage contract between the parties. The other case cited by the solicitor for the defendant in support of his contention under the present head is Thompson v. Thompson, 178 A.D. 610, 165 N.Y.S. 892. That case is of no pertinency for the reason that under the then existing Married Women's Act of New York a wife was enabled to sue her husband at law. It is, as before stated, conceded that she cannot do so in this State.

2. It is next objected that the agreement is not enforceable either in law or equity. That it is not enforceable at law is clear. But it does not follow that it is not enforceable in equity. The lack of a remedy at law in actions between husband and wife is the familiar ground upon which...