Gummerson v. Gummerson

WOOD, J.

Plaintiff commenced this action to recover from defendant a sum due in accordance with the terms of a property settlement agreement made between the parties on April 1, 1924, at which time they were husband and wife, but not living together. Defendant prosecutes this appeal from a judgment in plaintiff’s favor.

The following provisions among others appear in the property settlement agreement: “Whereas, the parties hereto desire to agree upon and forever settle their respective property rights to make and effect a full and complete settlement of their rights and obligations toward each other and all rights that may after accrue by reason of said marriage . . . that the party of the second part shall pay to the party of the first part for her support and the support of said minor child the sum of $100.00 per month, payable $50.00 on the 1st and 15th of each and every month, beginning April 1st, 1924. Said payments to continue until said minor child will have attained the age of 18 years or completed her education and the party of the second part expressly agrees to continue such payments of $100.00 per month until the said minor child’s

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High School and College education is completed provided said child is not married before her education is completed . . . The party of the first part hereby agrees to accept the payment as hereinabove specified as a full and complete settlement of all property rights or claims against the party of the second part . . . that each of the parties hereto does forever relinquish all claims, as to community property or otherwise to the property in possession of or under the control of the other or to the accumulation of said property and each of the parties hereto does forever relinquish and release any and all earnings and accumulations of the other. ’ ’

Plaintiff secured a decree of divorce from defendant on August 4, 1924, by the terms of which plaintiff was awarded the custody of the minor child of the parties. The decree provided that defendant should pay to plaintiff “the sum of $300 per month for the support of herself and said minor child ... all in accordance with an agreement between plaintiff and defendant on file herein”. On April 13, 1932, upon application of the defendant, the court in the divorce action modified the divorce decree by reducing the amount of the payments for the support of the minor child to $50 per month until the child should become 21 years of age or self-supporting or until further order of the court and relieving the defendant of the duty of making further payments for the support of the plaintiff herself. Thereafter defendant paid the plaintiff the sum of $50 per month until April 30, 1934, after which date, except for a payment of $25, defendant refused to make further payments either for the support of plaintiff or for the support of the child. It was stipulated that the child’s education was completed on January 31, 1935. The payments for which judgment was rendered were for the period ending January 31, 1935.