Turpin v. Turpin

• Decision Date: 08 May 1939
• Docket Number: No. 19478.,19478.
• Citation: 128 S.W.2d 279
• Court: Missouri Court of Appeals
• Parties: TURPIN v. TURPIN.

128 S.W.2d 279

TURPIN v. TURPIN.

No. 19478.

Kansas City Court of Appeals. Missouri.

May 8, 1939.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Suit by Lois Turpin against J. H. Turpin for payments due under contract for support and maintenance. From judgment for plaintiff, defendant appeals.

Affirmed.

Silvers & Silvers, of Butler, for appellant.

J. A. DeArmond, of Butler, for respondent.

CAMPBELL, Commissioner.

Plaintiff brought suit against defendant for divorce on June 16, 1934. While the action was pending and on December 4, 1934, the parties entered into a written contract in which it was recited that in order to settle and adjust their property rights they agreed: "That in the event of a divorce being granted to the plaintiff December 1934, defendant shall pay to plaintiff $40.00 per month, that is to say $25.00 for herself and $15.00 to be used in the support and maintenance of their minor child, Norman, so long as the plaintiff shall remain unmarried and in the event of her marriage, the $25.00 to her shall cease to be paid and until the boy Norman shall arrive at the age of 21 years and at which time the $15.00 to him shall cease to be paid."

Other provisions in the contract are not of consequence.

Prior to the signing of the contract the defendant filed answer denying the grounds of divorce alleged in the petition. The evidence shows decree of divorce was rendered on December 10, 1934, but it was not shown in whose favor the decree was rendered. The defendant in his answer did not seek divorce, and we will therefore presume the decree was in favor of the plaintiff. The decree recited the parties had adjusted their property rights.

The parties entered into a contract signed by both of them on June 12, 1934, in which it was recited they agreed to live separate and apart; that defendant would provide for the support and maintenance of plaintiff and his child, Norman, "for a period ending October 15, 1934"; that plaintiff would pay all outstanding bills, $20 cash, and pay to plaintiff on the 15th day of each of the 3 next succeeding months the sum of $50, and:

"It is understood that the son Norman will live with his mother and she is to provide his support and maintenance out of the money so paid to her as above stated. However the said J. H. Turpin is to purchase clothing for the son sufficient to provide for his immediate wants.

"From and after the date named, October 15, 1934, if the separation continues, new arrangements shall be made between the parties hereto that will be fair and equitable to all parties concerned."

The present suit is based on the contract of December 4 to recover two payments of $25 each, due May 15 and June 15, 1937. The trial was to the court, jury waived. The finding and judgment were for the plaintiff in the sum demanded. The defendant has appealed.

It is defendant's theory that the contract was void for the reason it promoted, encouraged and facilitated a divorce; that under the terms of the contract "no payments ever would become due unless and until plaintiff secured a divorce." The contract does not say the divorce suit would or would not be prosecuted. The contract of June 13 provided that if the separation continued "new arrangements" would be made which would "be fair and equitable to all parties concerned." That provision meant that in event the parties were not reconciled, defendant would make proper provision for the support and maintenance of his wife and child. The two contracts must be read together for the reason the second one was evidently made in performance of the last clause of the first.

We must assume the payments provided for in the second contract were "fair and equitable to all parties concerned." When the further facts are considered that defendant on this record was legally liable for the support and maintenance of his wife and child; that the divorce suit was pending from June 16 to December 10; that...