Moog v. Moog

LANGDON, J.

This is an appeal by the defendant from that portion of a judgment which allows to plaintiff as alimony the sum of $50 a month until further order of the court. Defendant does not appeal from the portion of the judgment granting to plaintiff a decree of divorce nor from that portion which divides the community property between the parties; but it is contended that plaintiff and defendant have settled, by contract, their property rights, and that such agreement should be binding in the divorce action.

The facts found by the court are that in July, 1921, plaintiff commenced an action for separate maintenance against defendant, and shortly thereafter, on July 26, 1921, the parties met at the residence of defendant’s sister and entered into a written agreement, by the terms of which defendant agreed to give and plaintiff agreed to accept “$50 per month as her separate support.” Plaintiff also agreed to dismiss her action for separate maintenance, which she did. On April 8, 1924, plaintiff acknowledged receipt of “$600, being payment at the rate of $50 per month for one year in advance on property settlement agreement”; that since the date of the said receipt the defendant has paid to and for the benefit of plaintiff the sum of $1,205. The court further found that plaintiff was not induced to enter into the said agreement of July 26, 1921, through fraud or undue influence on the part of defendant or of any other person, and that payments made as set forth hereinabove were made by defendant and accepted by plain

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tiff as payments upon and under said contract of July 26, 1921.

In the present action the custody of the minor children was awarded to the defendant, and he was charged with their support.

The amount of alimony allowed by the court was the same amount mentioned in the contract between the parties, but the dispute arises because of the fact that the judgment was entered in January, 1926, and the plaintiff had received, under the findings, all payments due her under the contract until March, 1927. It is vigorously contended that as the court has found the parties entered into the contract relied upon by defendant, and that plaintiff was not induced by fraud or undue influence to enter into the same and has accepted the benefits thereof for six years, she should be bound by the same and the court should not nullify this agreement between the parties without requiring the plaintiff to return the money which she has received in advance payments.