Boland v. Boland

NOURSE, P. J.

This is an appeal from a judgment against defendant for $8,995.40 based on a contract in which defendant agreed to pay plaintiff not less than $500 per month.

[403]

Plaintiff and defendant were married in 1910. They separated January 10, 1929, and on or about February 28, 1929, they entered into an agreement whereby plaintiff was to receive all the community property—amounting to between $50,000 and $75,000—and 25 per cent of defendant’s, income, but never less than $500 per month. In consideration plaintiff released defendant from all claims against him which she then had or might have in the future for support and maintenance. Defendant transferred the community property and paid $500 monthly for a while. He then reduced the payments and finally, in October, 1933, stopped paying altogether. On February 27, 1934, plaintiff instituted this suit for money due her under the $500 monthly clause in the contract. Defendant attempted to rescind the contract, claiming that he had been coerced into signing it. The court found against him and gave plaintiff judgment for the full amount unpaid up to May 31, 1934. Defendant now appeals on the ground that the second part of the contract which provides for his wife’s support is void as a matter of law—it being (1) against good morals and public policy; (2) in contravention of section 159 of the Civil Code, and (3) oppressive. He bases the first two claims on the contention that, under the contract, each party is forever released from any and all legal obligations growing out of the marriage relation although there is no mention of a separation in the contract. But respondent argues that the contract does not purport to alter any relations except as to property rights, and that, since husband and wife had already separated it was not necessary to include the separation agreement in the property settlement contract. Appellant further contends that, even if the contract be held valid, it cannot be effective until approved by a court of equity as in a separate maintenance proceeding.

This appeal presents just one debatable question—whether a contract between husband and wife, which was made after they had separated and while they were living apart, is void because it does not expressly recite the admitted fact of separation.

Appellant’s argument that the contract is contrary to public policy, to good morals, and to the requirements of section 159 of the Civil Code, because made after separation and not as an agreement to separate, is untenable under the