Cookinham v. Cookinham

THOMPSON, J.

This is an appeal from a judgment in favor of defendant following an order sustaining defendant’s demurrer to plaintiff’s amended complaint without leave to amend.

It is alleged in the amended complaint that on January 7, 1924, while the parties were husband and wife, but living separate and apart, they entered into an agreement settling their property rights, and that subsequently, on November 24, 1924, an interlocutory decree of divorce was granted to plaintiff, which decree approved and incorporated the provisions of the agreement. It is alleged that the final decree in the action was entered on July 25, 1926, which decree also adopted and ratified the provisions mentioned. It is then set forth that the agreement is and was void and against public policy; that it is executory in that it provides for payments to be made from month to month; and that so long as the agreement remains uncanceled plaintiff can

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not move for an order modifying either the interlocutory or the final decree. Plaintiff then prays that the agreement be declared void and the provision for the payment of one hundred and fifty ($150) dollars per month for the support of the defendant be stricken out of both the interlocutory and final decrees.

The agreement, the interlocutory decree and the final decree are attached to the complaint and by reference incorporated therein.

The first sets forth that the parties are living separate and apart; that the wife is about to commence an action for divorce and that they are desirous of settling their property rights. It is then agreed that the husband shall pay to the wife (the defendant in this action) the sum of $200 per month during the pendency of that action for the support of herself and their minor child; and if the court determines that she is entitled to a divorce the sum of $150 per month during her life or until she remarries, and the sum of $50 per month for the support of the minor daughter until the latter attains her majority. Provision is then made for the custody of the child, for her medical care and for life insurance upon the father’s life in favor of the child in the sum of $5,000. Next it recites the agreement of the husband to transfer to the wife the proceeds from the sale of certain real property, the amount of which is not set forth, their furniture, and to arrange another insurance policy in the sum of $5,000 so that she should be the beneficiary not subject to change without her consent. There is also a general provision, and one which says that in the event a divorce is granted the provisions of the contract may be incorporated, with the consent of the court, into the interlocutory and final decrees.