Ex Parte Weiler

STURTEVANT, J.

Formerly A. '¡Tudson Weiler, the petitioner, and Helen C. Weiler were husband and wife. They entered into a formal written contract settling their property rights. Later, Mrs. Weiler applied for divorce. Among other things she pleaded “that prior to the commencement of this action, by a written agreement, plaintiff and said defendant settled and adjusted between themselves their respective rights in and to all community property of said marriage,

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which said settlement plaintiff hereby requests the court to approve and confirm.” In her complaint she did not pray for counsel fees, costs or maintenance. The husband allowed his default to be taken. In the interlocutory decree the trial court inserted the following: “It is further ordered, adjudged and decreed that this court does hereby approve and confirm and make a part of this decree the provisions of that certain property settlement agreement made and entered into between the parties hereto and executed by them on the 15th day of May, 1928.” In the final decree that order was repeated. The defendant failed to make some of the payments provided in the written agreement and so adopted by the trial court. A motion was duly and properly made in the trial court asking that he be required to make the payments. After certain proceedings were had the order was made, but nevertheless the defendant neglected and refused to make the payments. He was adjudged guilty of contempt of court and later applied to this court for a writ of

habeas corpus.

In support of his application he makes the following points:

It is claimed the contract purported to limit the power of the court to provide alimony, counsel fees and costs. To this claim there are several answers. There is nothing on the face of the instrument which necessarily supports that claim. No request was made, no ruling was made, and the point is before us

ex gratia.

The identical covenant was not approved expressly and the record does not show any request was made that it be approved or disapproved.

The agreement recites that the parties are now (May 15, 1928) living separate and apart. It does not contain a word to the effect that either party does, or will do, anything to facilitate either party in obtaining a divorce. With much care it provides for a division of the property owned by the parties. The law does not prohibit but it authorizes the making of such contracts.