Kistler v. Kistler

124 N.W. 1028, 141 Wis. 491, 1910 Wisc. LEXIS 67

• Court: Wisconsin Supreme Court
• Decided: February 1, 1910
• Status: Published

Opinions

WiNsnow, C. J.

There are two questions in the case: First What was the effect of the remarriage on the judgment for division of property in the first divorce action? Second. Was that judgment paid and.satisfied by the stipulation made, in the second action and the payment of the $300 thereunder ?

1. The judgment for $1,000 in the first action is confused and inaccurate because it describes that sum as and for “permanent alimony and division of property,” whereas it cannot be both. It must, however, be construed as a division of property. Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 198. So construing it, the result necessarily follows that it was a final adjudication, not open to revision after the term at which it was rendered, and became the separate estate of the plaintiff. Being her separate estate, it continued to be such after her remarriage to the defendant, and was manifestly unaffected thereby. Sec. 2341, Stats. (1898). Had it been a judgment for alimony proper, i. e. support payable periodically, remarriage of the wife, even to a third person, would probably justify the court in reducing or taking away the provision entirely. 2 Bishop, Mar., Div. & Sep. § 1058; 14 Cyc. 787, and cases cited in note 24. But, as we have seen, a judgment for division of the property is final, conclusive, and not .open to change after the term at which it is rendered.

2. The judgment not being affected by the remarriage, was it. satisfied by the stipulation ? This question must on principle be answered in the negative. This court has said, in accordance with the prevailing rule of law, that “agreements promotive of marriage are valid, and those in aid of separation and divorce are void.” Baum v. Baum, 109 Wis. 47, 85 N. W. 122; Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690. The stipulation in question was an agreement in aid of divorce. The expressed consideration for the agreement to pay the $300 was the agreement by plaintiff to prosecute an action for divorce. While there is no direct agreement on defendant’s part to abstain from defending the divorce action, it is very evident that the object and purpose of the agreement was that plaintiff should diligently prosecute her suit for divorce and receive from defendant $300 for so doing. This must be considered an agreement having for its object the facilitating of the procurement of a divorce and hence void. 15 Am. & Eng. Ency. of Law (2d ed.) 956. If the agreement to pay the $300 was void, the agreement by plaintiff that such sum should he accepted in satisfaction of all claims for alimony is necessarily void, because they are both parts of the same transaction and so woven together as to be inseparable.

By the Court. — Order affirmed.