Bergevin v. Bergevin

Eschweiler, J. Upon this appeal, there being no substantial contradiction in the testimony of the various witnesses as to the substance of the agreement between the husband and wife at the time of the execution of the notes and mortgage in suit here, there is presented no issue of fact for review, but only the question as to whether or not, upon the undisputed facts, the court below arrived at the proper conclusion. McMillen v. Strange, 159 Wis. 271, 279, 150 N. W. 434. We are satisfied from a consideration of this evidence that these parties, then husband and wife, made the disclosed disposition of the property and obligations upon the sole consideration that the husband would not make any contest in the divorce action, if it was to be further prosecuted, and that upon such division of property they would abandon the marital relations that had theretofore existed. [470] The conveyances were made and obligations executed, and thereupon and therewith the husband did leave his family and continued thereafter to live away from wife and children and make no further provision for their support and care. It was an agreement, for a consideration of money and property, to dissolve a relationship that the public policy oí this state deems it for the best interests of the state as well as of the parties themselves shall continue to subsist unless and until it be lawfully dissolved in the manner prescribed by law and under proper judicial scrutiny and direction. When, as here, an executory part of such a contract is sought to be enforced, this court has always denied relief. Baum v. Baum, 109 Wis. 47, 85 N. W. 122; Anderson v. Anderson, 122 Wis. 480, 100 N. W. 829; Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. That the same public policy is pursued in other jurisdictions is seen in the case of Wolkovisky v. Rapaport, 216 Mass. 48, 102 N. E. 910; Ann. Cas. 1915A, 809 and cases cited. The parties to a divorce action may during its pendency and under sec. 2360, Stats., stipulate for a division of their property or estate, for alimony, or for the support of children in case a divorce be granted or a marriage annulled. But by the same statute such a stipulation must be subject to the approval of the court. Such submission to and approval by the court and the incorporating it within the provisions of the decree of divorce are essential to give such agreements as here made validity and efficacy. That was not done-here, and, failing that, the mere agreement of the parties will not be enforced. Martin v. Martin, 167 Wis. 255, 264, 167 N. W. 304, 307. The notes and mortgage, therefore, upon which this action is brought, being parts of a transaction contrary to public policy, ought not to be and cannot be so recognized or approved that the plaintiff may have them enforced by the courts. [471] By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint upon the merits.