Crudo v. Crudo

BURROUGHS, J.,

pro

tem.

This is an appeal hy defendant from an interlocutory decree of divorce in favor of the plaintiff. The appeal is upon the judgment-roll alone.

It is claimed on behalf of appellant that the court erred in not ordering a division of the community property. The court found as a fact that there was no community property. The only evidence of such property is an agreement of settlement of the property rights of the parties to this action made and executed by them on April 17, 1922, wherein it is recited “That whereas an immediate separation has become necessary between the parties hereto, man and wife; now, therefore, in order to finally adjust and settle all property disputes and mutual rights and maintenance and support, the parties hereto do hereby covenant and agree one with the other”; further provisions of the agreement conveyed to the defendant herein certain parcels of real property and specific articles of personal property, including some cash “to be taken and received by her as her own separate property.” There is a further provision of the agreement by the terms of which real and personal property is conveyed to the plaintiff “to be taken and received by him as his separate property.” The agreement was filed and acknowledged by the parties so as to entitle it to record, and on April 21, 1922, it was recorded

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at the request of the appellant. The court finds that said agreement has never been vacated, annulled or set aside and the same is now in full force and effect. The evidence not being before this court, it must be presumed that the findings are supported by the evidence.

Appellant contends, however, that the agreement is void as against public policy, in that it contains a clause releasing the parties “from all claims and demands whatsoever for support, maintenance, alimony and counsel fees and costs in any action pending or which may hereafter be brought by either one of the parties hereto against the other, all future claims or demands for alimony, support or maintenance by either party against the other being hereby expressly waived.” In answer to this claim we deem it sufficient to say that even if the above clause of the contract is subject to counsel’s criticisms, it is separable from the other provisions of the agreement and does not affect the balance thereof.