Stebbins v. Morris

Buck, J. The main question discussed in the briefs on tile in this case is whether or not the contract set forth in plaintiff’s complaint is void as against public policy. Under the Montana Codes which took effect in 1895 (sections 215, 216, Civil Code), an agreement for an immediate separation beT tween a husband and wife is expressly allowed, and their mutual consent is declared to be a sufficient consideration. The present controversy arose, however, even prior to the enactment in 1887 of what is generally known as the “Married Woman’s Emancipation Act.” This necessitates a consideration of the question with reference to the common-law .status of a married woman as this was substantially the legal status of the plaintiff when she entered into the agreement. Agreements for separation have been a fruitful source of litigation. To an investigator of the many decisions on the sub]ect, both in the United States and England, it is apparent that a majority of the later judges, in sustaining such agreements, have acted reluctantly, with a latent suspicion in their own minds of the legal logic of their conclusions. They seem to have yielded to precedent with a disagreeable consciousness that what they declare to be the law is such rather as the result of judicial legislation than anything else. Chancellor Walworth, in Carson v. Murray, 3 Paige 500, says : “It may well be doubted whether public policy, does not forbid any agreement for a separation between husband and wife, except under the sanction of a court of justice; and whether it does not also require that such agreements should be limited to those cases where, by the previous misconduct of one of the parties, the other is entitled to have the marriage contract dissolved, either — 119 — wholly or partially, by a decree of the competent tribunal.” And then, after commenting on the protests of Lord Eldon against the doctrine of sustaining such agreements, expressed in St. John v. St. John, 11 Ves. page 526, and Westmeath v. Westmeath, Jac. 126, the chancellor proceeds : “It has, however, long since become the settled law in England that a valid agreement for an immediate separation between a husband and wife, and for a separate allowance for her support, may be made through the medium of a • trustee. And, as many of the decisions which have gone to the greatest length on this subject took place previous to the Revolution, they have been recognized here as settling the law in the state to the same extent. ’ ’ In somewhat the same manner the supreme court of the United States, in Walker v. Walker, 9 Wall. 750, expresses its adherence to the doctrine. In that case the court said : “ It is contended that deeds of separation between husband and wife cannot be upheld, because it is against public policy to allow parties sustaining that relation to vary their duties and responsibilities by entering into an agreement which contemplates a partial dissolution of the marriage contract. If the question were before us, unaffected by decision, it would present difficulties, for it cannot be doubted that there are some serious objections to voluntary separations between married persons. But contracts of this nature for the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts in England and in this country for so long a period of time that the law on the subject must be considered as settled.” See, also, Schouler on Dom. Rel. § 215 et seq.; Bishop on Marriage, Divorce and Separation, Yol. 1, § 1263 et seq. The reason for this doubt and reluctance on the part of these judges is due to the fact that the public is directly interested in the inviolability of the marriage contract, and that the power to sever the tie is vested in the courts alone. It also results from the general doctrine that at common law a married woman had no contractual capacity. (Legard v. Johnson, 3 Ves. Jr. 352.) Certainly, when confronted by these rules of law, the doctrine — 120 — that a contract entered into by a married woman and her husband for separation is enforceable without enabling statutes, trenches strongly on judicial legislation. The later English courts have gone much further in this direction than most of the American courts. In commenting upon the language used in his decision on this question by an English judge, Mr. Bishop, in his work on Marriage, Divorce and Separation (section 1263, volume 1), indulges in the following somewhat too vigorous criticism.: “In the United States public opinion changes law as often as it does in England, but with us legislation ratifies the change; and, until the ratification in this form transpires, the judiciary is compelled, however much against its will, to remain quiescent. ’ ’ But a more elaborate discussion of the arguments for and against the doctrine would be of interest only to the curious student. However logical and sound the reasoning that has been and may be urged contra, by force of precedents it is firmly imbedded in the common law as interpreted by many of the best courts in the United States. See cases supra; also Bettle v. Wilson, 14 Ohio 257; Garbut v. Bowling, 81 Mo. 214; Randall v. Randall, 37 Mich. 563; Blaker v. Cooper, 7 Serg. and R. 502; Wells v. Stout, 9 Cal. 480; Clark v. Fosdick (N. Y. App.) 22 N. E. 1111; Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, and numerous other authorities. We are compelled to accept the general doctrine of these cases. But we are of the opinion that it is clearly subject to these limitations. An agreement for a separation which is to take place in the future is void as against public policy. So, too, after such an agreement is entered into, its terms must be immediately complied with on peril of nullity. And at the time of the making of such an agreement the relations between the husband and wife must be of such a character as to render the separation a matter of reasonable necessity for the health or happiness of the one or the other. There must be a moving cause for it in addition to the mere mutual volition of the parties. If it is the outcome of mutual caprice only, or a reckless disregard of the obligation of the marriage tie, then the courts will not en — 121 — force it. In almost all the cases that we have investigated, either from the recitals in the agreement for separation itself or from extrinsic evidence offered in connection therewith, the court has had before it an unhappy condition of marital relations as a moving cause for the contract. Judges have carefully discriminated between agreements for separation, outgrowths of domestic sorrow, entered into for the purpose of avoiding public scandal or notoriety, and those which have resulted from a wanton or reckless disregard of one of the highest obligations of life, — the duty which the husband and wife mutually owe to each other and to the public at large. In this view of the law, an agreement for separation of the latter kind would be a mere usurpation of the power conferred upon the courts alone to adjust marital dissensions in decrees of divorce. Tested, then, by these rules, what does this complaint show? Merely that the plaintiff and defendant agreed to separate, and divide the property which they had hitherto enjoyed together. No intimation is contained in the complaint that there was any necessity or moving cause for the separation other than mere caprice or purely voluntary consent. There is no allegation under which any other evidence in respect to it could be presented to the court. The demurrer was properly sustained. Had the complaint properly set forth any urgency or reasonable necessity for the agreement, then, no doubt, a cause of action would have been stated. Had it properly averred that the plaintiff had been imposed upon or defrauded by her husband in respect to this agreement, such averments would no doubt have altered the phase of the situation, and entitled the plaintiff to the relief demanded. But no such allegations appear. The complaint, too, while not perhaps directly susceptible of the inference, — from the ambiguous manner in which it refers to a subsequent divorce obtained by the plaintiff, — might very readily have engendered a suspicion in the mind of the district judge that the agreement had been entered into in contemplation of the divorce. In fact, from his written opinion, now before us, it appears — 122 — that he did entertain such a suspicion. Moreover, counsel for respondent assert in their brief (and the statement is uncontroverted by.the counsel for appellant) that the divorce was obtained on the same day that the agreement was entered into. If this is a correct statement, there is no impropriety in our citing another line of authorities, which, while generally illustrative of the principles of law governing agreements for separation we have been discussing, may also particularly apply to and settle this controversy. It is a general and uniform rule that any agreement entered into between husband and wife with a view to facilitating the dissolution of their marriage contract is void. (See Phillips v. Thorp, 10 Or. 494; Speck v. Dausman, 7 Mo. App. 165; Cross v. Cross, 58 N. H. 373; Kilborn v. Field, 78 Pa. St. 194. If, then, the agreement relied upon in this case was entered into between the parties in contemplation of and for the purpose of facilitating the divorce obtained by the wife, it should be held void, as collusive. If, however, it can be established that it was entered into without any collusive intent, and as merely incidental to a decree of divorce obtained without collusion, the plaintiff’s right to recover would assume a different aspect. (See Schmieding v. Doellner, 10 Mo. App. 373; Storey v. Storey, 125 Ill. 608, 18 N. E. 329.) Respondent’s counsel claim that this agreement is executory in character, and for this reason not enforceable; but we do not approve the attempted distinction. Nor do we agree with their contention that the agreement is void because there was no intervention of a trustee. Many of .the courts have clung to the old doctrine that the intervention of a trustee is essential to the validity of an agreement for a separation, but we are of opinion that the more correct and modern rule is that no such intervention is necessary. See Boone v. Chiles, 10 Pet. 255; 1 Beach on Modern Equity Jurisdiction, § 198. The judgment is affirmed, with costs, but it is ordered that the cause be remanded, with directions to the lower court to grant leave to the plaintiff to amend her complaint within a reason — 123 — able time, if, bringing herself within the tests of the law as herein stated, she has a cause of action. Affirmed. Pemberton, C. J., and Hunt, J., concur.