Summary
In Lowman v. Lowman (1956), 166 Ohio St. 1, at pages 9 and 10, the court again reaffirmed the husband's liability to his wife for "willful or negligent acts."
Summary of this case from LeCrone v. Tel. Co.Opinion
No. 34747
Decided December 12, 1956.
Husband and wife — Separation agreement — Mutual release of claims for support and maintenance — Rules governing actions of persons in confidential relationship — Evidence insufficient to establish reconciliation — Injuries to wife inflicted by husband — No reason for avoiding separation agreement — Change in circumstances not ground for setting aside agreement, when — Agreement given full effect in alimony proceeding, when.
1. On separation, a husband and wife may enter into an agreement mutually releasing each other from claims for future care, support and maintenance. (Paragraph two of the syllabus of Meyer v. Meyer, 153 Ohio St. 408; and Hoagland v. Hoagland, 113 Ohio St. 228, approved and followed.)
2. A separation agreement does not violate the general rules governing and controlling the actions of persons occupying confidential relations with each other, merely because it provides that the wife is to have custody of the child of the parties and that the husband is to be released from all obligations of future support for the wife regardless of future consequences and events.
3. Evidence that, after execution of a separation agreement and while the wife was living in her father's home at a time when her father was in the hospital, her husband frequently visited her during the daytime and had meals provided for him by her, attempted to effect a reconciliation, and on one occasion had sexual relations with her, is not sufficient to support a conclusion that such parties resumed any normal married life together. In the absence of direct evidence of an agreement by the husband and wife to a reconciliation, such reconciliation cannot be inferred from such evidence.
4. The negligent or willful infliction by a husband of injuries upon his wife's person after execution of a separation agreement between them is no reason for avoiding such agreement.
5. Where a husband and wife have not become reconciled and have not returned to cohabitation, an unanticipated change in their circumstances will provide no ground for setting aside those provisions of a separation agreement by which they release each other from claims for care, support and maintenance, if such agreement was valid when made and there is no other reason for granting equitable relief therefrom.
6. Where it does not appear that a separation agreement between a husband and a wife is void or that such husband and wife have become reconciled and have returned to cohabitation or that the wife is entitled to any equitable relief from any of the provisions of that agreement, the provisions of such agreement, releasing the husband from any claim by the wife for care, support or maintenance, must be given full effect by the trial court in any proceeding between the parties with respect to alimony.
APPEAL from the Court of Appeals for Lucas County.
On July 23, 1954, plaintiff instituted an action for divorce against defendant in the Common Pleas Court of Lucas County.
On August 11, 1954, plaintiff and defendant entered into a separation agreement. This agreement was prepared by plaintiff's attorney. At the time the agreement was executed defendant was not represented by an attorney. At the time the agreement was entered into, plaintiff and defendant were separated and living apart and plaintiff was working as a manicurist. The separation agreement reads so far as pertinent:
"That whereas, differences have arisen between the parties and in consequence thereof, they have separated and are now living separate and apart:
"And whereas, the parties desire to settle and adjust all differences between them * * *.
"And whereas, the said * * * [plaintiff] and * * * [defendant] have represented and hereby represent as a basis upon which this agreement is made that they are the owners of the following described property, to wit:
"1) Certain household goods and furnishings located at 618 Nicholas Street, Toledo, Ohio.
"2) One 1947 Dodge automobile.
"And whereas, said automobile and household furniture is [ sic] subject to an indebtedness of approximately $2,300.
"Now therefore, it is agreed by and between the parties hereto that * * * [defendant] is to receive the following:
"1) One 1947 Dodge automobile, tools, and personal belongings.
"2) One piano.
"3) One metronole [ sic].
"4) One piano bench.
"5) One tape recorder.
"6) One record player and records.
"7) One ice cooler.
"8) One electric fan.
"9) One radio.
"And it is further agreed by and between the parties hereto that * * * [plaintiff] is to receive all the rest and remainder of said household goods and furnishings * * *.
"It is further agreed by and between the parties hereto that * * * [plaintiff] is to have the custody and control of the minor child of said parents * * *.
"It is further agreed by and between the parties hereto that the amount to be paid for the support of said minor child is to be paid in accordance with the orders of the Common Pleas Court * * *.
"In consideration of the premises, the * * * [plaintiff] hereby releases the * * * [defendant] from all obligations of future support for herself and she does further release and relinquish unto the * * * [defendant], his heirs, executors, administrators or assigns all rights or claims by way of dower, inheritance, and descent, and any and all rights or claims to a distributive share of his personal estate * * * and all rights and claims as widow or distributee, survivor or next of kin in or to the estate of * * * [defendant], and all other rights and claims of every kind and nature arising or growing out of said marriage relation.
"It is further agreed by and between the parties hereto that * * * [defendant] will pay the indebtedness which now exists on said automobile and furniture amounting to approximately $2,300.
"And * * * [plaintiff] and * * * [defendant], for the considerations aforesaid, do further covenant and agree that they will not in any manner incur or contract any debts on the credit of the other, and will not incur any liabilities on the other's behalf, and in the case of a hearing of a divorce action by either party hereto, neither party will ask for any alimony either temporary or permanent, nor will make any claim for any interest in the property of the other except as herein set forth, but that the division of property made this day shall be in full satisfaction of all claims and demands as well as all support, rights of dower, inheritance and distribution.
"It is further agreed by and between the parties hereto that * * * [defendant] will pay the attorneys' fees incurred in the prosecution of this action amounting to $150, and the * * * [defendant], for the considerations aforesaid, agrees that the * * * [plaintiff] shall be at full liberty to dispose of all her property, real and personal, by last will and testament, free from any claim, interest, or right in favor of * * * [defendant], and that upon her death all of her property which shall not have been so disposed of shall descend to, vest in, and be distributed to such person or persons as would be entitled thereto by the statutes of descent and distribution of the state of Ohio then in effect had the * * * [defendant] died during the life of * * * [plaintiff].
"And * * * [plaintiff], for the considerations aforesaid, does hereby release and relinquish to * * * [defendant], his heirs, executors, administrators, and assigns all rights and claims of dower, inheritance, descent, and distribution, and all rights and claims as widow, heir, distributee, survivor, or next of kin, and all other rights or claims in any manner arising or growing out of the marriage relation now existing between said parties in or to the estate of * * * [defendant]."
On August 13, 1954, pursuant to that agreement, the trial court ordered defendant to pay $15 a week for support of the child of plaintiff and defendant.
There is evidence tending to prove that on August 27, 1954, plaintiff and defendant visited a tavern together and defendant struck plaintiff several times and threw her into an automobile with such force that he caused her to have a brain concussion; and that, as a result, plaintiff was at the point of death for several days and incurred hospital and doctor bills in excess of $1,000.
Thereafter plaintiff filed an amended petition alleging that the separation agreement is null and void.
Subsequently, the cause came on for hearing before the Common Pleas Court on the amended petition, the answer thereto, the separation agreement and the evidence. So far as pertinent with respect to the separation agreement, the order of the court reads:
"* * * The court finds that said separation agreement is invalid and unenforceable and that same should be vacated and set aside and held for naught. * * *
"It is further ordered, adjudged and decreed * * * that defendant pay to plaintiff * * * ten dollars ($10) per week, said payments commencing as of August 27, 1954, and continuing until further order of the court. * * * that defendant pay all medical * * * surgical and hospital expenses incurred by said plaintiff to date and to reimburse her for any sums which have been advanced by her prior to this date."
The basis for the rulings of the Common Pleas Court in that order were set forth in a "memorandum opinion" which reads, so far as pertinent with respect to the separation agreement:
"There is no suggestion of fraud or mistake at any stage of the proceeding. Indeed, counsel for the wife, who brought the divorce action in the first instance and now repudiates the separation agreement, is the very lawyer who prepared and witnessed the execution thereof while the husband had no attorney.
"* * *
"* * * a separation agreement is definitely restricted to two elements: Agreement to separate and provisions for support.
"Now the latter is a positive not a negative requirement. The parties may provide for support, not nonsupport or avoidance of support or escape from the duty to support. * * *
"* * *
"* * * The husband may agree as to support but not as to being relieved of support. * * *
"* * *
"In the case before us the agreement made no provision for support of either party. * * * It seems to us the agreement was in direct violation of O.R.C. para 3103.06 and hence is invalid.
"It also seems to us that it violates the general rules governing persons in a confidential relationship. * * * the parties made no provision for the support of the mother of their child, who was to be its custodian and who was thereby charged with the duty of bringing it up the way it should go * * *. It is true that the wife was gainfully employed at the time of the agreement, making about half as much as the husband; but this fact did not give her either the moral or legal right to cut herself off forever, nor the husband to take advantage of her willingness to forego alimony in order to get rid of him.
"* * * we come to the question of alimony: * * * When we ruled on the motion for temporary alimony (the ruling which was reversed) we answered that question with the award of $10 weekly until further order * * * we see no reason to change that ruling.
"* * * the child's mother is no longer gainfully employed. And since her inability to work was caused by the husband, the installment order should date back to the time of the accident and continue until there is a change in the circumstances which would warrant the court in terminating or modifying the order.
"As to the medical expenses, the husband should pay them all and save the wife harmless thereon, repaying her whatever sums she may have paid out heretofore. This is not to punish the husband. We do not believe he intentionally injured her. But, first he was her husband and liable for his wife's necessaries, there being no such abandonment as would absolve him. Second, his actions constitute a perfect paradigm of willful negligence. But if the wife were to recover a judgment against him ex delicto it would probably be worthless and easily erased in bankruptcy.
"The remaining provisions of the separation agreement (other than the attempt to exclude alimony) appear fair and may be incorporated in the journal entry * * *."
On appeal to the Court of Appeals, the foregoing order of the Common Pleas Court was affirmed without opinion.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.
Messrs. Lane, Downing DeMuth, for appellee.
Messrs. Cobourn, Yager, Notnagel, Smith Beck, for appellant.
This court has recognized that in certain instances, at least as between the parties thereto (cf. Gross v. Ohio Savings Trust Co., 116 Ohio St. 230, 156 N.E. 205, with DeCamp v. Hamma, Exr., 29 Ohio St. 467), a contract may be void because of what is referred to as fraud in the factum. Perry v. M. O'Neil Co., 78 Ohio St. 200, 210, 211, 85 N.E. 41; Picklesimer v. Baltimore Ohio Rd. Co., 151 Ohio St. 1, 84 N.E.2d 214; Meyer v. Meyer, 153 Ohio St. 408, 91 N.E.2d 892.
On the record in the instant case, there is no basis for finding and it is not contended that there was such fraud. Further, it is not even contended that the plaintiff wife was induced by any fraud to execute the separation agreement. This was recognized by the common pleas judge in his opinion when he stated that "there is no suggestion of fraud or mistake at any stage of the proceeding." He based his decision on the conclusions (1) that there could be no valid separation agreement which provided in effect for "nonsupport or avoidance of support or escape from the duty to support" and (2) that the separation agreement violated "the general rules governing persons in a confidential relationship."
Although this court has recognized that what is now Section 3103.06, Revised Code, does limit the power of husband and wife to make a contract altering their legal relations, it has held that "on separation, a husband and wife may enter into an agreement mutually releasing their respective rights to dower and distributive shares and releasing each other from claims for care, support or maintenance." Meyer v. Meyer, supra ( 153 Ohio St. 408), paragraph two of the syllabus; Hoagland v. Hoagland, 113 Ohio St. 228, 148 N.E. 585. There is therefore no justification for the conclusion of the trial court that the separation agreement involved in the instant case should be disregarded merely because it has no provision for the future support of either the plaintiff wife or the defendant husband.
In effect, as indicated by his opinion, the position of the common pleas judge with respect to his conclusion, that the separation agreement violates the general rules governing persons in a confidential relationship, was that such a violation could exist merely because the wife was to have custody of their child and the husband and wife had attempted to release all obligations of future support for the wife regardless of future consequences or events.
Such a position is contrary to the reasoning advanced in the opinion by Hart, J., in support of the decision rendered in Tullis v. Tullis, 138 Ohio St. 187, 191, 34 N.E.2d 212. Also, although it is not now apparent whether this court would follow the decision in Tullis v. Tullis, supra (see Seitz v. Seitz, 156 Ohio St. 516, 520, 103 N.E.2d 741), it is apparent, from the reasons advanced in the majority and the minority opinions in the Tullis case and from the decision and opinions in the Seitz case as well as from the decision and reasons advanced therefor in Corbett v. Corbett, 123 Ohio St. 76, 174 N.E. 10, that protection of the minor child of the parties in the instant case would not be in any way dependent upon a conclusion such as that reached by the trial judge with respect to this separation agreement.
No agreement could affect the obligations of either plaintiff or defendant to support their child; and the agreement involved in the instant case does not even purport to do so.
There is no evidence disclosed in the instant case that would justify the conclusion that equitable relief from the separation agreement should be given to the plaintiff wife for any violation of "the general rules which control the actions of persons occupying confidential relations with each other." (Section 3103.05, Revised Code.) On the other hand, the evidence discloses that plaintiff was employed at the time the agreement was signed and was earning about one-half as much as her husband; that her attorney prepared the separation agreement; and that defendant had no attorney at that time. Further, plaintiff admits that she fully understood the agreement and the consequences that would follow if its terms were carried out.
Plaintiff contends that the trial court was justified in setting aside the separation agreement because defendant husband, after its execution, immediately started associating with plaintiff, cohabited with her, kept company with her and attacked her in such a way as to inflict serious injuries upon her person.
It may be that, if the parties thereto become reconciled and return to cohabitation, a separation agreement will thereby be terminated so far as it remains executory. 17 American Jurisprudence, 551, Section 735. Although there is evidence to the contrary, there is some evidence that, after the separation agreement was executed and while the plaintiff wife was living in her father's home at a time when her father was in the hospital, the defendant husband frequently visited her during the daytime and had meals provided for him by her, attempted to effect a reconciliation, and on one occasion had sexual relations with her. This evidence, if believed, is not sufficient to support the conclusion that the parties at any time after the execution of the separation agreement resumed any normal married life together. Plaintiff admitted that she never agreed to a reconciliation. Her amended petition does not even allege any reconciliation but only an attempt by defendant to "affect [ sic] a reconciliation." In the absence of direct evidence of an agreement by the husband and wife to a reconciliation, such reconciliation cannot be inferred from evidence, such as the plaintiff wife in the instant case offered, which does not tend to prove that she and defendant had resumed a normal married life together. See Roberts v. Pace, 193 Va. 156, 67 S.E.2d 844, 35 A.L.R. (2d), 702.
Plaintiff would have a cause of action against defendant for any injuries which may have been inflicted upon plaintiff's person by the willful or negligent acts of defendant. Damm v. Elyria Lodge, 158 Ohio St. 107, 107 N.E.2d 337. It is apparent that any such cause of action would not be affected by the previously executed separation agreement. In view of the existence of such a cause of action, the negligent or willful infliction by defendant of such injuries upon plaintiff's person after execution of the separation agreement would hardly seem to be a reason for avoiding the separation agreement.
Where the parties have not become reconciled and returned to cohabitation, an unanticipated change in the circumstances of the parties will provide no ground for setting aside those provisions of a separation agreement by which the parties release each other from claims for care, support and maintenance if such agreement was valid when made and there is no other reason for granting equitable relief therefrom. Meyer v. Meyer, supra ( 153 Ohio St. 408) . See also Mendelson v. Mendelson, 123 Ohio St. 11, 173 N.E. 615; Mozden v. Mozden, 162 Ohio St. 169, 122 N.E.2d 295; Newman v. Newman, 161 Ohio St. 247, 118 N.E.2d 649; and Law v. Law, 64 Ohio St. 369, 60 N.E. 560.
Since it does not appear that the separation agreement in the instant case is void or that the plaintiff and defendant have become reconciled and returned to cohabitation, or that plaintiff is entitled to any equitable relief from any of the provisions of that agreement, the Common Pleas Court erred in refusing to give full effect to the provisions of that agreement releasing defendant husband from any claim by plaintiff wife for care, support or maintenance.
It follows that the judgment of the Court of Appeals must be reversed, and the cause is remanded to the Common Pleas Court for further proceedings in accordance with this opinion.
Judgment reversed.
MATTHIAS, HART, ZIMMERMAN, STEWART and BELL, JJ., concur.