Winter v. Winter

Any contract between husband and wife, at least without the intervention of a trustee, as well as every contract between the wife and any third person, was void at common law. This rule rested on the principle that the existence of the wife was merged in that of her husband and the unity was so complete that nearly all their legal rights depended upon it. In 1848 the legislature of this state began very cautiously to sever the merger of identity and by 1862 had progressed so far as to permit a married woman to carry on business and make contracts with reference to her separate estate. (L. 1848, ch. 200 ; L. 1860, ch. 90 ; L. 1862, ch. 172.)

Legislation continued to advance by gradual and seemingly reluctant steps until in the course of half a century complete freedom of contract was extended to married women with reference to every subject except the contract of marriage itself. The final act was the Domestic Relations Law, passed in 1896, which provided that “a married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.” (L. 1896, ch. 272, § 21.) This section changed and codified many previous statutes, each of which had advanced further than any of its predecessors toward the complete commercial emancipation of married women. We cite some of the latest merely to illustrate the subject. (L. 1892, ch. 594; L. 1890, ch. 248; L. 1884, ch. 381.)

The courts at first were more conservative than the legisla

On the other hand,, the Appellate Division, while writing no opinion in this case, based its judgment of reversal on its opinion in Effray v. Effray ( 110 App. Div. 545 ). The argument in" that case is that if the agreement to support were a mere contract between a husband and wife, then living together, to separate and live apart in the future, it would be void as against public policy. As, however, the parties had already separated and an action for a limited divorce was pending, an agreement that the parties should continue to live apart and that the husband should pay a certain sum for the support of his wife is valid and can be enforced, even without the intervention of a trustee. Reliance was placed upon Pettit v. Pettit ( 107 N. Y. 677 ); Galusha v. Galusha ( 116 N. Y. 635 ) and Lawson v. Lawson ( 56 App. Div. 535 ).

In Pettit v. Pettit the parties had separated and an action for a limited divorce was pending when they entered into an agreement that provided for the wife’s support through a division of the husband’s property, which was to be converted into money, and after payment of his debts one-third of the

The action was brought by the wife against the husband for the specific performance of the agreement on his part and the trial court, after finding the facts as stated, held “ that the said agreement set forth in the complaint in this action is a good and valid agreement between the parties, made upon a good and sufficient consideration and that the same is not against public policy or void and should be enforced against the defendant.” The decree for specific performance was affirmed by the General Term and upon further appeal this court affirmed both judgments. Judge Finch, speaking for all the judges, said : “ The questions remaining are as to the validity of the wu-itten contract and its force and effect.' It is claimed to be against public policy because by its terms the wife agrees to live separate and apart from her husband. In the pending action for divorce, the plaintiff would have been entitled, if successful, to a*decree of separation and a suitable allowance from the estate of her husband, for her

This case was relied upon in Galusha v. Galusha (supra) where an agreement resembling the one now before us, but made through the intervention of a trustee, was sustained as valid when made and held not to be invalidated by a subsequent violation of his marriage vow by the husband. It has been followed in many other cases, some of which arose since the passage of the Domestic Relations Law, which was held not to be violated by an agreement made directly between husband and wife after they had separated, whereby he agreed to pay her a certain sum every week for the support of herself, or herself and children. (Clark v. Fosdick, 118 N. Y. 7 , 14; Effray v. Effray, 110 App. Div. 545 ; Lawson v. Lawson, 56 App. Div. 535 ; France v. France, 38 Misc. Rep. 459 ; Taylor v. Taylor, 32 Misc. Rep. 312 .) Apparently it was not brought to the attention of the court in Carling v. Carling (supra), upon which the Appellate Term relied.

Agreements like the one considered in Pettit v. Pettit, and the one now before us, if made while the parties are still living together, are held void as against public policy where it is an essential part thereof that they should thereafter separate. (P oillon v. Poillon, 49 App. Div. 341 ; Whitney v. Whitney, 4 App. Div. 597 ; Maney v. Maney, 119 App. Div. 765 .)

Prior to the legislation which gave married women general power to make contracts, it was the law that if the parties had actually separated, a valid agreement might be made

The Supreme Court of the United States gave expression to its views upon the subject through Mr. Justice Davis in Walker v. Walker (supra), all the justices concurring: “It is contended that deeds of separation between husband and wife can not be upheld, because it is against public policy to allow parties sustaining that relation to vary their duties and responsibilities by entering into an agreement which contemplates a partial dissolution of the marriage contract. If the question were before us, unaffected by decision, it would present difficulties, for it can not be doubted that there are serious objections to voluntary separations between married persons. But contracts of this nature for the separate maintenance of the wife through the intervention of a. trustee, have received the sanction of the courts in England and in this country for so long a period of time that the law on the subject must be considered as settled,” citing many cases.

The intervention of a trustee or third person is no longer necessary even for the conveyance of real estate, or the partition thereof with bar to dower and curtesy. (Dom. Bel. Law, § '26.) In view of the legislation which permits husbands and wives to contract directly with- each other, any contract for separation and support, which they could formerly have made by means of a trustee, they can now make without one. The only reason for resorting to a trustee was the ancient rule that

The pendency of such an action was not regarded as material in the cases which sustain agreements for a separation through a trustee, for in many of them no suit had been brought and none was in contemplation. The mere pendency of an action undetermined and untried, proves nothing, except that the parties disagree and that one or both claim j nst grounds therefor, all of which is necessarily implied from the making of the agreement after a separation has actually taken place. It affords no sanction of a court and calls for no approval by public authority. It furnishes no consideration for the agreement, which is supported by the mutual promises of the parties thereto. It protects no interest of either party, or of the state, and to found a distinction upon it would elevate form above substance.

Does the contract in question “ relieve the husband from his liability to support his wife ” in violation of the Domestic Relations Law % An agreement by the husband to pay such a sum for the support of his wife as is satisfactory to her, can

The clause in question was not intended to change, but to preserve the law as it previously existed and to prevent the broad powers committed to the wife by the forepart of the section to make any contract “with any person,including her husband,” from opening the door so wide that she could release her husband from his liability without any adequate provision for her support being made by him. She does not relieve him of his obligation when she accepts his promise to perform it and he does not forsake his duty when he agrees to discharge it to her satisfaction. She is the best judge of what she needs for her support and the amount may be fixed and settled by an agreement made after actual separation without violating any principle of law or any statute now in existence.

It is contended, although the question was not raised at the trial, that even if the contract is valid, it can be enforced only in a court of equity, but since a married woman can now contract directly with her husband and is made “ liable on such, contracts as if she were unmarried,” resort to equity is no longer necessary or reasonable. (Dom. Eel. Law, § 21.) She now “ appears, prosecutes or defends alone, or joined with other parties, as if she were sole.” (Code Civ. Pro. § 450.) All courts are open to her and, she can enter them with the freedom of a man. She can sue her husband on his

The order of the Appellate Division should he affirmed and judgment absolute rendered against the defendant on his stipulation, with costs in all courts.

Cullen, Ch. J., Haight, Werner, Willard Bartlett, Hiscock and Chase, JJ., concur.

Ordered accordingly.