Walter H. Cleary, As Trustee of Alice M. Lafrance v. Ernest S. Lafrance

• Decision Date: 03 May 1938
• Citation: 199 A. 242,109 Vt. 422
• Parties: WALTER H. CLEARY, AS TRUSTEE OF ALICE M. LAFRANCE v. ERNEST S. LAFRANCE
• Court: Vermont Supreme Court

199 A. 242

109 Vt. 422

WALTER H. CLEARY, AS TRUSTEE OF ALICE M. LAFRANCE v. ERNEST S. LAFRANCE

Supreme Court of Vermont

May 3, 1938

February Term, 1938.

Public Policy as to Separation Agreements of Husband and Wife---Specific Performance Thereof---Agreement Held Not against Public Policy---Construction as Effecting Permanent Separation---Agreement Presumed to Be Fair---Consideration for Agreement of Husband and Wife with Trustee---Consideration for Husband's Promise---Contract of Trustee as Such Consideration---Statutory Disability of Contract No Impediment to Action by Trustee.

1. It is not against public policy to allow spouses, where separation has already taken place, or is immediately to take place, fairly to define by contract their mutual rights and obligations with respect to property and to the wife's support whether such agreement is made directly between the spouses or through intervention of trustee.

2. Separation agreements, not contemplated at time of marriage and not brought about by a frivolous view of the marriage relation, may come about for such reasons, and may be of such character that courts of equity will recognize them and will enforce specific performance of pecuniary agreements relating thereto.

3. Contract with trustee of husband and wife who had been living apart, containing nothing to bar reconciliation whereby husband, in consideration of release from liability for support of wife, transferred household goods to trustee agreed to discharge certain indebtedness and to pay to trustee weekly sum for support of wife, and latter, in consideration of such payments, agreed with trustee to undertake her own support, was not against public policy.

4. Separation agreement of husband and wife with trustee was not to be construed to effect permanent separation when different construction was possible.

5. In absence of showing to contrary, separation agreement of husband and wife with trustee was presumed to be fair.

6. Mutual promises of parties to separation agreement of husband and wife with trustee supplied ample consideration therefor.

7. Husband's duty to support his wife and her right to compel him to do so coupled with her promise to demand no more in way of support than contract calls for are sufficient to constitute consideration for his promise in separation agreement.

8. In separation agreement of husband and wife with trustee husband's contract was supported by contract of trustee on behalf of wife.

9. Statutory disability of contract between husband and wife presented no impediment to action by trustee on separation agreement of husband and wife with him, since undertakings of husband and wife were not between themselves, but severally with trustee, and he could enforce contract at law for benefit of spouse whom he represented.

ACTION OF CONTRACT on separation agreement of husband and wife with trustee, brought by trustee to recover for breach thereof by husband. The defendant demurred on grounds that contract was without consideration and against public policy. Heard on demurrer at the March Term, 1936, Orleans County, Sherman, J., presiding. Demurrer overruled. Amended declaration adjudged sufficient. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed and cause remanded.

Raymond L. Miles for the defendant.

Sterry R. Waterman for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

MOULTON

This is an action in contract. The declaration alleges that on June 4, 1932, the defendant Ernest LaFrance and Alice M. LaFrance, his wife, were, and had been for some time then past, living separate and apart from each other; that, desiring to come to an amicable settlement, they executed a written contract with Walter H. Cleary, the plaintiff, as trustee, the material parts of which were as follows: In consideration that he was released from all obligation and liability for the future support of his wife the defendant transferred to the plaintiff, as trustee, certain household goods and furnishings, agreed to discharge certain outstanding indebtedness, and to pay each week to the plaintiff, as trustee, a certain sum of money, for the care and support of his wife; in consideration of these weekly payments to the plaintiff, to be used for her support, and the payment of the specified debts, Alice agreed with the plaintiff, as trustee, that she would undertake and assume her own support, without further expense to, or liability on the part of, the defendant; in consideration of the performance of the agreement by the defendant and his wife, the plaintiff agreed to accept the trust, to receive the money and to disburse it for the support of Alice; and "the further consideration for this contract is the agreement of the other parties to the contract and the performance of the contract by each of them." It is alleged that Alice M. LaFrance has performed her part of the contract, and the plaintiff, as trustee, has been willing to perform his part, and has done so except in so far as he has been prevented by the failure of the defendant to carry out his promises and undertakings, but the latter has failed to make all the stipulated weekly payments, and is now in arrears, to recover which this action is brought.

The defendant demurred upon the grounds that the contract was void as being without consideration, and against public policy, in that it contemplated a continued voluntary separation between husband and wife, and the prevention of a reconciliation between them, and was an agreement by mutual consent for a separation from bed and board. The demurrer was overruled in the trial court, and the cause is here on defendant's exceptions.

However askance the law may once have looked upon agreements, contemplating the separation of husband and wife they are no longer regarded with such disfavor as to condemn them under all circumstances. It is now well settled in England, and in the great majority of jurisdictions in this country, that it is not against public policy to allow the spouses, where the separation has already taken place, or is immediately to take place, fairly to define by contract their mutual rights and obligations with respect to property and to the wife's support whether such agreement is made directly between the spouses or through the intervention of a trustee. Peters v. Peters, 20 Del. Ch. 28, 169 A. 298, 301, 302; Grime v. Borden, 166 Mass. 198, 199, 200, 44 N.E. 216; French v. McAnarney, 290 Mass. 544, 195 N.E. 714, 98 A.L.R. 530, 532; Clark v. Fosdick, 118 N.Y. 7, 22 N.E. 1111, 1112, 1113, 6 L.R.A. 132, 16 Am. St. Rep. 733; Winter v. Winter, 191 N.Y. 462, 84 N.E. 382, 16 L.R.A. (N.S.) 710, 713, 714; Van Koten v. Van Koten, 323 Ill. 323, 154 N.E. 146, 50 A.L.R. 347, 350; Aspinwall v. Aspinwall, 49 N.J.Eq. 302, 24 A. 926, 927; Clark v. Clark, 13 N.J. Misc. 49, 176 A. 81, 83; Walker v. Walker's Executor, 9 Wall. 743, 750, 19 L.Ed. 814, 817; Carey v. Mackey, 82 Me. 516, 20 A. 84, 85, 9 L.R.A. 113, 17 Am. St. Rep. 500; cases cited annotations, 1 L.R.A. 512; 12 L.R.A. (N.S.) 848, 50 A.L.R. 352; 3 Williston on Contracts, p. 3042, par. 1742; Restatement of Contracts, par. 584; Peaslee, "Separation Agreements under the English Law," 15 Harvard Law Review, 638. As Sir George Jessell, Master of the Rolls, said in Besant v. Wood, L. R. 12 Ch. Div. 605, 620: "For a great number of years both ecclesiastical judges and lay judges thought it was something very horrible, and against public policy, that husband and wife should agree to live separate; and it was supposed that a civilized country could no longer exist if such agreements were enforced by courts of law, whether ecclesiastical or not. But a change came over judicial opinion as to public policy, other considerations arose, and people began to think that, after all, it might be better and more beneficial for married people to avoid in many cases the expense and scandal of suits of divorce by settling their differences quietly by the aid of friends out...