Mr. Chief Justice Young
delivered the opinion of the court.
The parties to this action are before us in reverse order of their appearance in the trial court. For convenience, they are herein designated as plaintiff and defendant.
Plaintiff, the divorced wife of defendant, sued on a postnuptial separation agreement for certain payments due her according to its terms. Therein it was agreed inter alia that the husband would convey, and by the contract he did convey, to the wife, all his right, title and interest in and to the household goods, furniture and fixtures in the home of the parties, located at 360 Clarkson street in the city of Denver, and that the wife would convey, and by the contract she did convey to the husband, all her right, title and interest in and to a certain automobile which was registered in the name of the husband. The husband agreed to pay the outstanding family bills which were listed in an exhibit attached to the contract. The husband further agreed to pay the wife fifteen dollars each and every week after the date of the agreement, for her support and maintenance, and to continue said payments during her natural life, or until she should remarry, in the event that a divorce should thereafter be procured by either of the parties to the contract. It was specifically provided that nothing in the contract should be construed to prevent either party thereto from legally divorcing the other, nor [142] as relieving either party from the legal effect of any misconduct prohibited by statute. It was further provided that said contract might be enforced by either of the parties by legal -action, or by proceedings in the nature of an action for specific performance, but such provision for enforcement of the contract was not to be construed as a limitation of any other right of action to which either of the parties might be entitled in the event of a breach of any of the conditions of the contract.
May 21, 1943, plaintiff commenced an action in the district court of the City and County of Denver, alleging that defendant had failed and neglected to make the weekly payments of fifteen dollars for the preceding two weeks and that there was then due and owing to plaintiff under the terms of said contract, the sum of thirty dollars. Thereafter, an amendment to the complaint was permitted whereby plaintiff alleged that since the filing of the complaint there had accrued and become owing to her an additional two hundred twenty-five dollars. A copy of the contract was attached to the complaint as “Exhibit A”. Defendant moved to strike the complaint on the ground that it failed to state a claim upon which relief could be granted. The motion was denied. Defendant answered, admitting that he signed the contract; that he had refused to make weekly payments of fifteen dollars; and denied generally all allegations of the complaint not specifically admitted. For a second defense, he alleged, “that there was no consideration for the writing marked 'Exhibit A’ and attached to the complaint, and it is not a contract.” For a third defense, defendant alleged that immediately upon signing the contract, plaintiff brought action in divorce against defendant in the district court of the City and County of Denver; that an interlocutory decree was entered on February 13, 1941, and that the alleged contract was not submitted to the court for its approval; that the court did not in any manner approve [143] or disapprove the same, and that for this reason the said alleged contract was illegal and void. Plaintiff moved to strike defendant’s answer on the ground that the matters therein pleaded constituted no defense to the complaint. This motion was denied.
Plaintiff, by way of replication, alleged that defendant’s second and third defenses were legally insufficient to constitute any defense to plaintiff’s complaint. Other matters in the replication need not be mentioned, for the reason that upon filing thereof, plaintiff moved that her replication, alleging the legal insufficiency of defendant’s second and third defenses be sustained, and that she have judgment on the pleadings, in the amount of two hundred fifty-five dollars, which was the amount for which she prayed judgment in her complaint. The court sustained this motion and entered judgment accordingly, to reverse which defendant prosecutes a writ of error.
Defendant specifies but three points upon which he relies for reversal, namely: (1) That the motion of plaintiff for judgment on the pleadings should have been denied; (2) that the second answer of defendant, alleging that there was no consideration for the alleged contract, was a full and complete defense to the action and that, therefore, the motion for judgment on the pleadings should have been denied; (3) that the third answer, setting up that the alleged contract between the parties was void and unenforcible because it was not approved by the court in the divorce action between the parties, was a full and complete defense to the action, and that the motion for judgment on the pleadings should have been denied.
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Mr. Chief Justice Young
delivered the opinion of the court.
The parties to this action are before us in reverse order of their appearance in the trial court. For convenience, they are herein designated as plaintiff and defendant.
Plaintiff, the divorced wife of defendant, sued on a postnuptial separation agreement for certain payments due her according to its terms. Therein it was agreed inter alia that the husband would convey, and by the contract he did convey, to the wife, all his right, title and interest in and to the household goods, furniture and fixtures in the home of the parties, located at 360 Clarkson street in the city of Denver, and that the wife would convey, and by the contract she did convey to the husband, all her right, title and interest in and to a certain automobile which was registered in the name of the husband. The husband agreed to pay the outstanding family bills which were listed in an exhibit attached to the contract. The husband further agreed to pay the wife fifteen dollars each and every week after the date of the agreement, for her support and maintenance, and to continue said payments during her natural life, or until she should remarry, in the event that a divorce should thereafter be procured by either of the parties to the contract. It was specifically provided that nothing in the contract should be construed to prevent either party thereto from legally divorcing the other, nor [142] as relieving either party from the legal effect of any misconduct prohibited by statute. It was further provided that said contract might be enforced by either of the parties by legal -action, or by proceedings in the nature of an action for specific performance, but such provision for enforcement of the contract was not to be construed as a limitation of any other right of action to which either of the parties might be entitled in the event of a breach of any of the conditions of the contract.
May 21, 1943, plaintiff commenced an action in the district court of the City and County of Denver, alleging that defendant had failed and neglected to make the weekly payments of fifteen dollars for the preceding two weeks and that there was then due and owing to plaintiff under the terms of said contract, the sum of thirty dollars. Thereafter, an amendment to the complaint was permitted whereby plaintiff alleged that since the filing of the complaint there had accrued and become owing to her an additional two hundred twenty-five dollars. A copy of the contract was attached to the complaint as “Exhibit A”. Defendant moved to strike the complaint on the ground that it failed to state a claim upon which relief could be granted. The motion was denied. Defendant answered, admitting that he signed the contract; that he had refused to make weekly payments of fifteen dollars; and denied generally all allegations of the complaint not specifically admitted. For a second defense, he alleged, “that there was no consideration for the writing marked 'Exhibit A’ and attached to the complaint, and it is not a contract.” For a third defense, defendant alleged that immediately upon signing the contract, plaintiff brought action in divorce against defendant in the district court of the City and County of Denver; that an interlocutory decree was entered on February 13, 1941, and that the alleged contract was not submitted to the court for its approval; that the court did not in any manner approve [143] or disapprove the same, and that for this reason the said alleged contract was illegal and void. Plaintiff moved to strike defendant’s answer on the ground that the matters therein pleaded constituted no defense to the complaint. This motion was denied.
Plaintiff, by way of replication, alleged that defendant’s second and third defenses were legally insufficient to constitute any defense to plaintiff’s complaint. Other matters in the replication need not be mentioned, for the reason that upon filing thereof, plaintiff moved that her replication, alleging the legal insufficiency of defendant’s second and third defenses be sustained, and that she have judgment on the pleadings, in the amount of two hundred fifty-five dollars, which was the amount for which she prayed judgment in her complaint. The court sustained this motion and entered judgment accordingly, to reverse which defendant prosecutes a writ of error.
Defendant specifies but three points upon which he relies for reversal, namely: (1) That the motion of plaintiff for judgment on the pleadings should have been denied; (2) that the second answer of defendant, alleging that there was no consideration for the alleged contract, was a full and complete defense to the action and that, therefore, the motion for judgment on the pleadings should have been denied; (3) that the third answer, setting up that the alleged contract between the parties was void and unenforcible because it was not approved by the court in the divorce action between the parties, was a full and complete defense to the action, and that the motion for judgment on the pleadings should have been denied.
We are of the opinion that none of these specifications has merit. Defendant admits the execution of the postnuptial agreement, and in neither his answer nor his brief, does he set forth, or make any contention that there is any issue on the matter of the sufficiency of consideration to sustain the contract, except such as [144] appear on the face thereof. We think the contract shows on its face a legal consideration. Defendant thereby agreed to pay plaintiff fifteen dollars per week during her natural life or until she remarried. He further agreed to pay certain household expenses which, as a matter of law, he was obligated to pay. He agreed to convey, and did convey, to her whatever interest he had in certain household furnishings, 'and the wife agreed to convey to him, and did convey,' whatever interest she had in a certain automobile registered in the name of defendant. Independent of the contract, the wife was not obligated to do this; the husband was not obligated to convey his interest in the furniture, nor was he obligated to make specific payments for her support. It may be said generally, that doing, or agreeing to do, what one is not legally obligated to do, constitutes in law, consideration. The fact, as pointed out by defendant in his brief, that plaintiff did not relinquish her rights to alimony in the event that she should procure a divorce, or the right to inherit as an heir of defendant in the event of his death, is balanced at least in part by the fact that defendant did not by the contract surrender his rights to inherit from his wife in the event of her death. In executing a separation agreement, we know of no rule compelling either party to surrender to the other all of the rights incident to the marriage status in order to make the contract valid. From the execution of the contract, December 24, 1940, until two weeks before suit was instituted thereon, May 24, 1943, defendant made the payments thereunder. He made such payments for more than two years after the interlocutory decree of divorce was entered. The date of the entry of the final decree of divorce does not appear, but subsequent to the time that the court had a right to determine the property rights and the support, if any, to be awarded to the wife, defendant recognized the contract and performed it according to its terms. The situation here presented [145] is not greatly dissimilar to that involved in the case of Jones v. Jones, 1 Colo. App. 28, 27 Pac. 85. The reasoning upholding the contract there involved is applicable to support the contract in the instant case.
The second point specified as error, that the contract is unenforcible because in the divorce action (the possibility of which, the contract on its face shows was in contemplation of the parties) it was not approved by the court, is likewise without merit. Our statute, we think, is decisive on this point: “Courts shall have jurisdiction to enforce specifically the terms and payments provided in marriage settlement contract and separate maintenance agreements, heretofore or hereafter entered into, whether the parties have been divorced or not.” ’35 C.S.A., c. 56, §29.
The facts alleged by plaintiff and admitted by defendant, were sufficient in law to entitle plaintiff to the recovery which she sought. No other issues were raised by the pleadings, a determination of which would defeat such recovery and it was, therefore, proper for the court to enter judgment on the pleadings.
Judgment affirmed.
Mr. Justice Hilliard dissents.