Roberts v. Roberts

KNIGHT, J.

This is defendant’s appeal from a judgment rendered against him in an action to recover money claimed to be due under a written agreement entered into between defendant and plaintiff as husband and wife.

The agreement in question was executed on August 28, 1924, about six weeks after the parties had separated, and provided among other things for a property settlement including the payment to plaintiff by defendant of the sum of $100 a month as maintenance. Shortly after the execution of said agreement plaintiff commenced an action for divorce upon the ground of extreme cruelty, alleging in her complaint that there was no community property; that the property rights had been settled between them by the written agreement of August 26, 1924, as a part of which settlement defendant promised and agreed to pay her the sum of $100 a month as maintenance; and she therefore asked that the 'decree of divorce which she was seeking embody a provision directing such payment to be made. One of the several defenses interposed by defendant was that said agreement was void, as

contra bonos mores,

but upon trial that defense was not sustained, the court making findings upholding the legality of said instrument except as to two clauses thereof which will be hereinafter referred to. Thereupon an interlocutory decree of divorce was granted, but the court, refusing to be bound by the two clauses above mentioned, which

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related to the amount of maintenance which the parties had agreed should be allowed plaintiff in ease of divorce, awarded plaintiff monthly maintenance in the sum of $65 instead of $100 as stipulated in said agreement. The interlocutory decree was entered on November 14, 1925, and no appeal was taken therefrom.

Subsequently, and on May 8, 1926, plaintiff commenced the instant action to collect the accrued payments claimed to be due under said settlement agreement minus the amount of alimony granted by the court under the divorce decree, which the defendant had paid. Defendant urged as one of his defenses that the agreement upon which plaintiff’s action was founded had been declared void by the decision in the divorce action, and that therefore its terms were not after-wards enforceable. The trial court expressly negatived this defense, and held affirmatively that the decision in the divorce action established that said agreement was “a valid, subsisting, and legal agreement between the parties thereto” except as to the two clauses above mentioned, and that no appeal having been taken, the decision and decree therein became final and conclusive against the parties in the present action “as to the questions involved herein respecting said agreement.” Whereupon plaintiff was given judgment for $910, of which sum $700 represented the full amount of the monthly allowance called for under said agreement from the date of its execution up to the time of the entry of the interlocutory decree of divorce, the balance representing the difference of $35 a month between the amount of the monthly maintenance fixed by said agreement and the amount awarded by the court, and paid by the defendant in the divorce action, from the date of the interlocutory decree to the date of judgment herein; and the court further declared in its decision: “That said plaintiff has concurrent remedies against defendant, one under said interlocutory decree for the payment of alimony and one upon said written agreement; that any moneys paid by said defendant to plaintiff for her maintenance and support over and above the sum of seven hundred dollars ($700) which was due upon said agreement at the time of the giving and making of said interlocutory decree of divorce shall be credited both upon said judgment for alimony and upon said agreement,”