Opinion
October 22, 1929.
December 12, 1929.
Husband and wife — Separation agreement — Alimony pendente lite — Consideration — Contract against public policy.
Affidavits of defense were held insufficient in these actions in assumpsit (1) by a wife against her husband (2) by a wife against her husband's surety on a contract of separation providing for support, etc.
The husband's affidavit of defense averred that the agreement provided for alimony pendente lite, and that he had been divorced from plaintiff and that the contract was therefore discharged.
The surety's affidavit of defense averred that he executed the suretyship on representations that plaintiff intended to obtain a divorce and immediately re-marry, and that he became surety for payments pendente lite; that the parties were divorced and the contract discharged.
Neither affidavit contained averments sufficient to reform the agreement and in that respect were insufficient.
If the consideration for a contract of separation is divorce or facilitating divorce by collusion, the agreement is unenforcible.
An affidavit of defense is considered as stating as strongly as possible everything a defendant may say in his favor.
Bona fide agreements of separation providing reasonable support by a husband for his wife and the adjustment of property rights between them are lawful.
Appeals Nos. 240 and 241, October T., 1929, by defendants from judgments of C.P., No. 2, Philadelphia County, March T., 1929, Nos. 1950 and 1951, in the cases of Ruth L. Hall v. Lincoln W. Hall and Ruth L. Hall v. Lincoln W. Hall.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Assumpsit upon a written agreement of separation. Before GORDON, JR., J.
From the record it appeared that the separation agreement provided as follows:
Agreement made between Lincoln W. Hall hereinafter called "the husband" and Ruth L. Hall hereinafter called "the wife." Witnesseth
Whereas as a result of difficulties and disagreements the parties on or about the third day of October, 1926, separated, and since that time have been living separate and apart;
Whereas the husband desires to make provision for the maintenance and support of the wife during his lifetime and during such time as the parties hereto live separate and apart and or as long as the wife remains unmarried;
Now therefore, in consideration of the sum of one dollar to each party hereto by the other duly paid, the receipt whereof is hereby acknowledged, and in consideration of the mutual covenants and agreements herein, the parties agree:
1. The parties shall live separate and apart and each be free from interference, authority and control, by the other, and each may conduct, carry on and engage in any business employment or trade, which to him or her shall seem advisable for his or her own sole or separate use and benefit without and free from any control, restraint or interference, direct or indirect, by the other party. The husband hereby agrees to join in any petition by the wife to be declared a feme sole trader and will execute any instrument necessary to procure the decree for the same.
2. Each of the parties agree that he or she will not molest the other, or compel or seek to compel the other party to co-habit or dwell with him or by any proceedings for restoration or conjugal rights, or otherwise.
3. The husband agrees to assign, transfer and deliver and hereby assigns, transfers and delivers to his wife, absolutely, all the furniture, silverware, china, glass-ware and other household effects of any kind and description now owned by him or held jointly by the parties, which constituted the household effects of their common habitation at 117 West Upsal Street, Germantown, Philadelphia, and these shall remain her sole and separate property, free and discharged from all rights of the husband, with full power to the wife to sell, assign, transfer, bequeath or dispense of any of the property mentioned in this paragraph during her lifetime, or by her last will and testament as fully and effectually in all respects as if she were sole and unmarried. The husband agrees that he will, from time to time, execute and deliver such further instruments and do such further acts as will be necessary to make effectual the provisions of this paragraph.
4. The wife covenants and agrees that she will release her right of dower in the property of which the husband is now seized or possessed or may hereafter be seized or possessed, and that she will execute, acknowledge and deliver at the request of the husband or his legal representatives, without cost or expense to her, all such deeds, releases or other instruments as may be necessary to bar, release or extinguish such right to dower.
Except as herein provided, the wife hereby releases all of her interest in or her rights or claims to the separate estate of the husband.
5. The husband covenants and agrees that he will release his right of curtesy in the property of which the wife is now seized or possessed or may hereafter be seized or possessed, and that he will execute, acknowledge and deliver at the request of the wife or her legal representatives, without cost or expense to her, all such deeds, releases or other instruments as may be necessary to bar, release or extinguish such right of curtesy.
6. Each of the parties hereto shall have the right to dispose of his or her property by last will and testament, or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall go and belong to the person or persons who would have become entitled thereto if the other party had predeceased him or her. And each of the parties further covenants and agrees that he or she will permit any will of the other to be probated and allow administration upon his or her personal estate and effects to be taken out by the person or persons who would have been entitled so to do had he or she died during the life time of the other; and that neither of the parties will claim against the will and estate of the other.
7. The wife covenants and agrees that she will not maintain any judicial proceeding looking to an order on the husband for maintenance and support, and will not molest him, or expose him to humiliation by bringing proceedings against him for maintenance and support, in the municipal court of the County of Philadelphia, or in any other court having or purporting to have competent jurisdiction.
8. The husband covenants and agrees that he will, during his life-time, during such time as they live separate and apart, the wife remaining unmarried, pay to the wife for her separate maintenance and support and for her separate use and benefit, the sum of $100 per month, beginning the fifth day of March, 1927, and monthly thereafter, which payments shall terminate on the death of the husband, the living together of the parties or the remarriage of the wife during the lifetime of the husband.
9. The wife covenants and agrees that the amount herein undertaken by the husband to be paid to her for maintenance and support is full, ample, fair and adequate, considering the income and extent of property and assets of the husband, the social status of the parties, and the needs and requirements of the wife.
10. The parties hereto declare that each is fully informed and cognizant of the extent of the income, property, estate and assets of the other after full and complete disclosure each to the other made; and each hereby declares his or her complete satisfaction that such disclosure has been fully and frankly made and accepts the same as true and correct and as having been given in good faith; and each of the parties hereto having verified the extent of the income, property, estate and assets of the other, hereby waives enumeration and itemization thereof in this agreement.
11. The wife covenants and agrees that so long as the husband shall perform each and every of the covenants and conditions hereto on his part to be performed and observed she will not at any time contract any debt or debts, charge or liability for which the husband or his estate shall or may become liable or answerable.
12. It is further agreed by the parties hereto that this agreement shall end, cease and terminate upon the death of the husband, the resumption of marital relations of the parties hereto, or the remarriage of the wife during the lifetime of the husband.
13. The foregoing contains the entire agreement between the parties and there are no other understandings or agreements between them.
In witness whereof the parties hereto have hereunto set their hands and seals this 26th day of February, 1927.
Lincoln W. Hall (Seal) Ruth L. Hall (Seal)
In the Presence of Maurice Stern as to Lincoln W. Hall Charles H. Steel as to Lincoln W. Hall Mary H. Remington as to Ruth L. Hall
GUARANTY OF PERFORMANCE OF CONTRACT
In consideration of the sum of one dollar to me in hand paid by Ruth L. Hall, the receipt whereof is hereby acknowledged, I do hereby irrevocably guarantee, promise and agree to and with her for myself, my executors, administrators and assigns, that the above-named Lincoln W. Hall will well and faithfully perform and fulfill everything by the foregoing agreement on his part and behalf to be performed and fulfilled, at the times and in the manner above provided; and I hereby agree, for myself, my executors, administrators and assigns, to be bound as surety for the faithful performance by Lincoln W. Hall of all his obligations and agreements in favor of Ruth L. Hall, as provided in the foregoing agreement, each and all of them without exception.
I do hereby expressly waive and dispense with any demand upon the said Lincoln W. Hall and any notice of any non-performance on his part.
Signed, sealed and delivered this 26th day of February, 1927.
J. Lincoln Hall (Seal)
Witnesses: Nicholas Biddle Fagan James A. Walker Anna W. Frank.
The court entered judgments for plaintiff against each defendant in the sum of $450 for want of sufficient affidavits of defense. Defendants appealed.
Error assigned was the entry of judgment.
C. Coe Farrier, for appellant. — The allegation raising the question of the invalidity of the suit by reason of its being contrary to public policy is sufficient to take the case to the jury: Miller v. Miller, 284 Pa. 414; Irvin v. Irvin, 169 Pa. 529; Reynolds v. Richards, 14 Pa. 205; Shannon's Estate, 289 Pa. 280; Com. v. Glennon, 92 Pa. Super. 94.
Plaintiff is estopped to enforce this agreement by her representations upon which defendant relied: Wagner v. Marcus, 288 Pa. 579. Joseph M. Smith and John L. Burns, for appellee. — The contract is not contrary to public policy: Hutton v. Hutton, 3 Pa. 100; Dillinger's Appeal, 35 Pa. 357; Scott's Estate, No. 2, 147 Pa. 102; Shimp v. Gray, 41 Pa. Super. 542; Muhr's Estate, 59 Pa. Super. 393; Rodenbaugh v. Rodenbaugh, 17 Pa. Super. 619.
Argued October 22, 1929.
In two suits, one against her former husband and one against his father, plaintiff has judgment for want of sufficient affidavits of defense; both defendants have appealed; as their appeals were heard in one argument, they will be disposed of together.
On February 26, 1927, husband and wife (parties in No. 240, October Term, 1929), executed an agreement of separation; (a copy will be found in the reporter's statement). Paragraph 8 provides: "The husband covenants and agrees that he will, during his lifetime, during such time as they live separate and apart, the wife remaining unmarried, pay to the wife for her separate maintenance and support and for her separate use and benefit, the sum of $100 per month, beginning the fifth day of March, 1927, and monthly thereafter, which payments shall terminate on the death of the husband, the living together of the parties or the remarriage of the wife during the lifetime of the husband." Paragraph 12 states: "It is further agreed by the parties hereto that this agreement shall end, cease and terminate upon the death of the husband, the resumption of marital relations of the parties hereto, or the remarriage of the wife during the lifetime of the husband."
In the statement of claim in No. 240 plaintiff avers performance by both parties until November 5, 1928, when, she alleges, defendant defaulted. She brought suit March 7, 1929, and declared for the sums due up to and including that payable March 5, 1929, a total of $450. She avers that she and her husband had not resumed marital relations, that she had not remarried and that he was still living.
In her suit against her father-in-law (appellant in 241, October Term, 1929), she makes substantially the same allegations and sues for breach of the contract of suretyship (see Act of July 24, 1913, P.L. 971).
In the affidavit of defense (appeal No. 240), defendant denies that he agreed to support his wife "for an indefinite length of time, and it is averred that both parties contemplated bringing divorce proceedings forthwith. It is further averred that the agreement was entered into in substitution for alimony pendente lite during the pendency of the divorce proceedings." He then avers that pursuant to proceedings instituted by him, he was divorced "in the latter part of the year, 1927;" and "at the time of the making of the agreement both the party plaintiff and the defendant, Lincoln W. Hall, contemplated the institution of divorce proceedings and each contemplated remarriage after the granting of a final decree." We note from the pleadings that, though divorced in 1927 he continued making payments under his agreement until November, 1928.
Defendant in appeal No. 241 avers that plaintiff represented to him "that she intended to remarry immediately after the divorce decree was obtained, and on the faith of his representation, the defendant, J. Lincoln Hall, undertook to be surety for the payments during the pendency of the divorce proceedings; that in the latter part of the year of 1927, the plaintiff and Lincoln W. Hall, her husband, were divorced, at which time it became the duty of the plaintiff to remarry or otherwise relieve the defendant, J. Lincoln Hall of any responsibility for the payments under the agreement of February 26, 1927." He also avers "that it was represented to him that the agreement was in substitution for alimony pendente lite during the prosecution of the divorce proceeding which the parties had in contemplation when the agreement was executed and it was represented to him by the plaintiff that she intended to remarry after the entry of a final decree in divorce almost immediately, at which time the payments under the agreement would cease to be payable. That the said representations were fraudulent and known to be fraudulent to the plaintiff and she had since the entry of the final decree in divorce neglected to remarry or in any other way releasing the defendant's principal from payments under the agreement."
The contract on its face is lawful. It has been performed by plaintiff, — a fact that we must accept for present purposes: Miller v. Miller, 284 Pa. 414, 416. None of the contingencies specified in the contract on the happening of which payment was to cease, has occurred. Defendants' position — as stated in their affidavits — is that they are entitled to reform their contracts by eliminating paragraphs 8 and 12 quoted above, and substituting for them an earlier termination of liability than that specified in the writing. The rules governing the reformation of agreements are well settled in Pennsylvania, but defendants have averred no facts to which those rules could apply; there is nothing in the affidavit which suggests, let alone avers, that anything was omitted from the contract by fraud, accident or mistake, or that anything was stated in it which had not been agreed upon when it was executed and delivered. Even if, for present purposes, we considered that divorce proceedings were contemplated (in the language of the averment), and that the agreement was intended to provide for support pendente lite as averred, we should still have a declaration by defendants that the contract is lawful, for it is not illegal to provide support pendente lite. Of course, if the consideration for a contract of separation is divorce or facilitating divorce by collusion the agreement is unenforceable. The affidavits do not aver that the consideration was agreement to obtain a decree of divorce or that either agreed to assist the other in obtaining one or in refraining from testifying or otherwise participating collusively. The averment is "both parties contemplated bringing divorce proceedings forthwith." The affidavit "must also be considered as asserting as strongly as possible everything defendant can say in [his] favor ......": Wright v. General Carbonic Co., 271 Pa. 332, 339. So reading the affidavits, the fact averred concerning divorce, is that both parties "contemplated" such proceedings. That is not an averment of agreement to obtain a divorce or for collusion with regard to it. The word "contemplated" implies no such meaning, as any dictionary will show; one of the common definitions of the word "contemplate" is "intend;" conditions may have become such that both parties thought themselves lawfully entitled to succeed in divorce proceedings, in consequence of which both may have intended to bring divorce proceedings without, however, intending to do anything illegal about it — indeed the presumption is that their intentions were lawful. People frequently change their intentions, and there is no implication that they may not change them. A contract providing for support in case of separation in such circumstances is not and has never been held to be unlawful in Pennsylvania.
The suggestion in appellants' briefs that the consideration for the contract is against public policy and therefore unlawful does not merit discussion because there is no averment in the affidavits of defense to support it. In Miller v. Miller, 284 Pa. 414, at 418 it was said: "Likewise, an arrangement tending to facilitate the granting of a decree is invalid, and where collusion appears, as shown by a promise not to defend, nor to furnish evidence for the libellant, it cannot be sustained. However, if the facts negative this idea, a settlement for support or alimony will be upheld, though a divorce was in the minds of the parties (13 C.J. 464; 19 C.J. 92; King v. Mollohan, 60 Pac. R. 731, 61 Pac. R. 685 (Kan.), or the causes upon which the application is to be based are by stipulation limited: Irvin v. Irvin, supra. `According, to the weight of authority, bona fide agreements relating to alimony or the adjustment of property rights between the husband and wife, though in contemplation of a divorce, will be upheld if not directly conducive to the procurement of a divorce': 9 R.C.L. 256. `Thus, where a separation has been induced not by collusion but by the vicious conduct or disability of one of the parties without inducement or fault of the other, and it had furnished just grounds for legal separation, then a contract looking to a settlement of property rights and proper maintenance of the one not in fault is in no sense repugnant to public policy': 9 R.C.L. 257. And if an enforceable agreement has been made, the subsequent granting of a decree will not affect the rights acquired: 30 C.J. 1067; Muhr's Est., 59 Pa. Super. 393." See also Thommen v. Thommen's Inc., 95 Pa. Super. 17, 24.
No. 240, judgment affirmed.
No. 241, judgment affirmed.