Cumming v. Cumming

102 S.E. 572, 127 Va. 16, 1920 Va. LEXIS 29

• Court: Supreme Court of Virginia
• Decided: March 18, 1920
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The following questions which are involved in this cause will be disposed of in their order as stated below:

1. Is the decree under review erroneous in its adjudication that the husband is entitled to an absolute divorce on the grounds of desertion and cruelty?

We are of opinion that this question must be answered in the affirmative.

[1-2] As appears from the facts set forth in the statement preceding this opinion, the conduct of the wife, relied on by the husband as constituting cruelty to him, did not originally cause the separation of the husband and wife, nor did it in any way cause its continuance. That separation and its continuance was wholly due to the wilful desertion of the wife by the husband, and would have existed just as it did had the conduct of the wife been blameless. Hence, as a justification or excuse for the desertion by the husband, the conduct of the wife, even though it were considered to be misconduct, must be disregarded, being immaterial to the issues before the court in this suit. Such desertion on the part of the husband continued for a, period of more than three years, as appears from the statement preceding this opinion. The wife, therefore, was entitled to an absolute divorce on the ground of desertion, and not her husband.

Of course if the husband had repented of his desertion of the wife and had made any overture with the intention of ending the separation, and any conduct on her part amounting to cruelty to him had prevented his cohabiting with her in the relationship of man and wife, that would have justified his thereafter continuing to live apart from the wife, and, so long as such situation continued, the wife, in contemplation of law, would have been considered as guilty of desertion; but no such case is presented by the record before us.

2. Is the decree under review erroneous in its adjudication that the antenuptial contract set forth in the statement preceding this opinion was valid?

We are of opinion that this question must be answered in the affirmative.

[3] As appears from the facts set forth in the statement preceding this opinion the specific object and the actual result of the antenuptial 'contract was to encourage or facilitate a separation after the marriage. Such a contract is illegal and void. Hence it is not binding upon and cannot be enforced against either party. 1 Bishop on Mar. Div. & Separation (1891), sec. 1277; Watson v. Watson, 37 Ind. App. 548; 77 N. E. 355; Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1.

As said in Bishop on Mar. Div. & Sep. sec. 1277; “* * any agreement encouraging a separation is void. * * Even . if made before marriage, in view of a possible living apart, it is invalid.”

In Watson v. Watson, supra, 37 Ind. App. 548; 77 N. E. 355, there was an antenuptial contract which provided for a certain dower for the wife in the event that she should survive the husband, but it also provided that “in the case the parties fail to agree and shall, for any cause, separate and continue to live apart,” the husband should pay the wife the sum of $200.00, and that neither party should have “any claim, interest, right to and in the separate property of the other, either in the life time of the parties or at the death of either.” The agreement was followed by marriage and cohabitation of the parties as man and wife for three years, when they separated, and the husband brought suit for divorce on the ground of conduct of the wife which he alleged amounted to cruelty. The wife filed an answer and cross-bill in which she made the counter-charge of cruelty and non-support, and prayed that the divorce and alimony be awarded to heir. The court below held the wife to be entitled to the divorce, decreed accordingly and allowed the wife alimony and attorney’s fees, and the husband appealed. As stated in the opinion, the sole question before the 'appellate court was “the effect of the antenuptial contract on the question of alimony.” In the opinion of the court it is further said:

“Appellant insists that $200.00 is the limit of his liability to appellee in case of a separation for any cause, and that the decree should be modified so that the amount of appellee’s recovery for alimony shall not exceed that sum * * *

“If we should adopt appellant’s construction of the ante-nuptial contract it would be in effect affirming a rule of law authorizing parties contemplating marriage to fix in advance the husband’s liability for alimony in case either shall obtain a divorce. This we cannot do. While the law of this State is firmly fixed giving parties the right to adjust and settle property interests by antenuptail contract” (citing authorities), “yet such settlements must be free from fraud and imposition” (citing authorities), “and not against public policy, Neddo v. Neddo (1896), 56 Kan. 507, 44 Pac. 1.

“It is equally well settled that the husband is bound to support his wife” (citing authorities). “This'legal obligation is a part of every marriage contract. It is the duty Imposed upon the husband by law, and frorn this obligation he cannot shield himself by contract. To hold otherwise would be to invite disagreement, encourage separation, incite divorce proceedings and commend a principle which would be a menace to the welfare of society, contrary to public policy and tending to overthrow and destroy every principle of the law of marriage requiring that the husband and wife shall live together during their natural lives* and that the husband, within his financial ability, shall furnish the wife with reasonable necessaries for her support ■and home comforts in sickness and in health, as by law he is required to do. * * The case at bar furnished a good illustration where a settlement under contract would be an incentive to a separation * * . By the payment of the insignificant sum of $200.00 he would be relieved from” (the legal obligation aforesaid). “ * * such a contract is contrary to public policy and cannot be enforced. We must not be unmindful of the fact that the public have an interest in causes of that character, aside from the parties, and for this reason the question of alimony is a matter for the court and not a subject of agreement between the parties whereby the action of the court is to be controlled.

“A decree of divorce not only terminates the marital obligation, but from the nature of the litigation, property rights growing out of the marriage relation are necessarily involved in such proceedings, and there settled. This rule applies to all cases alike, regardless of any contract the parties in contemplation of marriage may have made.”

In Neddo v. Neddo, supra (56 Kan. 507, 44 Pac. 1), there was an antenuptial contract which provided that if the “parties should fail to live together amicably as husband and wife, and they should separate, either by abandonment or by divorce being granted to either or both of said parties, then the property * * owned and held by either of said parties * * shall be and remain” (their separate property), “and the parties hereby release 'and forever quit claim any right, title or interest acquired by reason of said marriage in the property” (aforesaid), “and also waive any claim to alimony or other rights acquired or liabilities incurred by reason of said marriage, in the event of such separation or divorce * * .” The parties married and lived together for fourteen years when they separated. The husband brought suit for divorce on the ground of adultery as charged in his third amended petition, and set up the antenuptial contract as in bar of any claim for alimony on the part of the wife. The wife filed her answer and cross-bill alleging desertion on the part of the husband. The court below decreed in favor of the wife, granted an absolute divorce (under the statute similar to ours, except that the period therein named is shorter than that provided in our statute as ground for an absolute divorce), and held the contract to be void and awarded the wife counsel fees, and alimony both pendente lite and permanent. The appellate court affirmed the case and in its opinion said:

“Contracts or settlements in consideration of marriage, which are reasonable, equitable and not against public pol-. icy, are recognized as valid by the statutes of this State and the decisions of this court. * * we hold that it” (the antenuptial contract aforesaid) “contains provisions contrary to public policy, * * . They seem to invite disagreement and abandonment, and make the same productive of profit to the party having the greater amount of property. The law of marriage * * required them to live together as husband and wife during their natural lives; but by violation of that law * * the party having the bulk of the property might derive pecuniary profit. No marriage settlement ought to be upheld which invites and encourages a violation of the marriage vow, and this contract is of that character. By the abandonment - of the wife in violation of the law of marriage it was in effect stipulated that the guilty party should be relieved from the duty of support that the law enjoins. A contract which invites the hope of financial profit from the separation of married people should not be enforced.”

The same principle is applicable to postnuptial contracts. 1 Bishop on Mar. Div. & Sep. sec. 1261; 2 Idem, sec. 696; 1 Elliott on Contracts, sec. 414; 1 Page on Contracts, sec. 429; Pereira v. Pereira, 156 Cal. 1, 103 Pac. 488, 23 L. R. A. (N. S.) 880, 134 Am. St. Rep. 107; 9 Cyc. 521.

As said in Bishop on Mar. Div. & Sep., supra (sec. 1261) : “ * * since the law makes the public a party to every suit for dissolution or separation, and forbids either form of divorce on the mutual agreement of the parties * * a,ny bargaining between them for a future separation, * * or tending to the like end, being contrary both to the law and legal policy, is .void.”

And again (2 Idem, supra, sec. 695), the same learned author says: “Therefore any agreement for divorce, or any collateral bargaining promotive of it, is unlawful and void.” (Italics supplied.)

As said in 1 Elliott on Contracts, supra, (sec. 414): “Contracts between husband and wife looking to a future separation * * are invalid.”

As said in Pereira v. Pereira, supra (156 Cal. 1, 103 Pac. 488, 23 L. R. A. (N. S.) 880, 134 Am. St. Rep. 107) : “ ‘Any contract between the parties having for its object the dissolution of the marriage contract or facilitating that result * * is void as contra bonos mores.’ ” (Italics supplied.)

[4, 5] It is true that the contract in the cause before us contains no express statement that its provisions limiting the husband’s legal obligation to support the wife and child are meant to go into effect upon his desertion of the wife, so as to enable him to accomplish such desertion and yet escape the legal obligation aforesaid except to the trivial amounts stipulated in the contract. But that such was the specific object of the contract clearly appears from other evidence in the cause, including the testimony of the husband. Such evidence, although parol, is admissible to show the illegality oi the contract. 9 Cyc. 766; 13 C. J. 770-1. And certainly in a divorce suit, in which it is the duty of the court, of its own motion, if need be, “to go into the investigation of the facts” (¡although) “not contested by the pleadings” (2 Bishop on Mar. Div. & Sep. sec. 663), the mere omission of such a contract to express its real object, cannot close the eyes of the court to that object when it is unmistakably disclosed by other evidence in the cause. We must regard the contract, therefore, as if its real object aforesaid bad been written in it. So regarding it, it was illegal and void.

[6-8] Such a contract is distinguishable from bona fide antenuptial and postnuptial contracts (such as are involved in all of the cases cited in the brief for appellee), not made with the specific object of providing a contract limitation of the legal obligation aforesaid with a view to controlling the action of the parties or of the court on the subject in any future proceeding for divorce or alimony, and in which the ground or grounds relied on for divorce arise from the action of the husband or wife after the contract is executed. The two features last mentioned are those which render such contracts invalid and distinguish them from antenuptial and postnuptial contracts which are valid. It is true that some postnuptial contracts which precede separation are in most jurisdictions held to be valid, but they are so held only where they contemplate an immediate separation for some ground existing prior to the contract which is sufficient of itself to bring about the separation. Such holding proceeds upon the principle that the parties have already irrevocably determined upon a separation for a pre-existing cause, and hence the upholding of an agreement as to property rights with a view to such an inevitable separation does not in such case encourage or facilitate the separation. Speck v. Dausman, 7 Mo. App. 165; 9 Cyc. 520-2; 13 C. J. 465-6. And the weight of authority and better opinion, indeed, is that even bona fide antenuptial and postnuptial contracts valid in all other respects, cannot bind the action of the court on ithe subject of alimony. The court will usually adopt such contract provisions if just and reasonable; otherwise it will not do so. 1 Page on Contracts, sec. 430.

[9] But \t is urged that in the case before us the husband would not have entered into the marriage status, but for the contract aforesaid limiting the resultant liability upon him aforesaid which would otherwise flow therefrom; that the act of the husband in entering into the marriage for the purpose of legitimating the child under the statute was a laudable act in itself, and that public policy demands that such action in the direction of just reparation should be encouraged and not discouraged. This argument can lead only to the position (which however is not so stated in the argument for the husband), that the husband in such case should be allowed by contract to limit his resultant liability aforesaid, because otherwise he would not accord, and others so situated will not accord such reparation at all. But it is apparent upon but slight reflection that the courts have no power to so hold. That would be to allow parties by private agreement to establish such marriage status as they may wish. The requirement of the statute for the legitimating of a child bom out of wedlock is that the father shall intermarry—enter into the marriage status—with the mother of the child. There is but one marriage status known to the law, and from it flows the legal obligation of the husband aforesaid to maintain and support the wife and child. The benefit of the statute cannot be obtained without the payment of the price therefor therein fixed. The courts are powerless to abate that price.

[10] We had intended to follow the conclusions reached above by consideration and adjudication upon the further questions of whether in the state of the pleadings an absolute divorce could be decreed on the ground of the desértion of the wife by the husband aforesaid, and, in any case, to have adjudicated that the wife is entitled to an allowance of alimony, both pendente lite and permanent, and to have remanded the cause to the court below for further proceedings to the end that such court should fix the amounts of the allowances of alimony and also of further reasonable attorney’s fees pendente lite; but since the case was argued and submitted to this court and after the portion of this opinion preceding this paragraph had been written, the death of the husband occurred. This fact is conceded by counsel representing both husband and wife, and of itself brings about a, situation in which any decree we might enter granting a divorce or allowing alimony would be inoperative. Hence no decree will be entered by us on those subjects except to reverse the original decree under review in such of its holdings as are found to be erroneous. To such extent the decree of this court will still be effective, for there could be no abatement of the original decree by reason of the death of any party to the cause after the appeal had been allowed (Reid’s Admr. v. Strider’s Adm’r, 7 Gratt. (48 Va.), at p. 84, 54 Am. Dec. 120); and by virtue of the statute (Code 1919; sec. 6167) the appellate court may, in its discretion, enter its decree dealing with the adjudications of the original decree as if no death of any party to the cause had. occurred. « There remains, therefore, in issue upon this appeal the subject of the provisions of the decree under review which held the antenuptial contract aforesaid to be valid, granted an absolute divorce on the prayer of the husband and further decreed, in effect, that the wife should be absolutely divested of any right, title, interest and estate of any character whatsoever in any property then owned or thereafter acquired and held by the husband. For the reasons stated above we are of opinion that all of such provisions of such decree were erroneous and to such extent the decree will be reversed.' No order dismissing the cause will be entered here as we are not advised whether any action has been taken by the court below on the subject of the custody of the child pending the appeal and prior to the death of the husband.

Reversed and remanded.