Beardsley v. Bass , 287 Mo. 393 ( 1921 )

I concur in the result reached by my learned brother in this case but do not agree that the statute he cites is relevant to the issues involved. This statute only pertains to pleadings in a divorce suit. It has no reference to contracts which are void as against public policy. It is true that the same public policy which voids collusive contracts as to divorces prompted this statutory provision as to pleadings in a divorce suit. But this statute does not make contracts void.

The real question is whether or not the contract pleaded is void because violative of public policy. The learned counsel for respondent contend (1) that the contract is not void as being against public policy, and (2) that if a portion of the contract is void for such reason, such portion is severable from the remaining portions, and the remaining portions can be specifically enforced. Appellants contend contra on both propositions.

In Blank v. Nohl, 112 Mo. l.c. 169, it is said: "The authorities are numerous to the effect that any agreement that the defendant in a divorce suit will not make a defense, or having for its object the dissolution of a marriage contract, ordesigned to promote and facilitate a divorce is void, because opposed to the policy of the law; and any promise founded on such an agreement is also void, and should not be enforced."

The italics, supra, are ours. This is the public policy of Missouri succinctly stated, and we do not understand that respondent's counsel seriously controvert this view. They contend that the contract set out in the petition does no violence to this rule of law. They urge that if the wife decided to marry again that such decision would amount to desertion, and the contract only provides for a right which the husband would have under the law, i.e. sue for divorce because he had been deserted. The particular clause reads: "Unless the said party of the second part should decide that she wishes to re-marry, in which case itis fully agreed that the said party of the first part shallsecure a divorce on the grounds of desertion and said payments to be made by him shall cease from the date that he is notified that the said party of the second part wishes to marry again."

The italics, supra, are ours. Note the use of the word "shall" as used, supra. There is nothing left (if the contract is to be lived up to) but for the husband to sue the wife for divorce whenever she notifies him that she desires to marry again. But this is not all. No fair interpretation of this contract can exclude the idea that the parties were likewise agreeing that there should be no defense made to the suit which the contract compelled the husband to bring. This idea is not expressed in definite terms but the whole tenor of the instrument so shows.

This clause, in my judgment, voids the whole contract. I do not believe that it is severable from the remaining clauses. It constitutes a vital portion of the agreement. It gives tinge and color to the whole instrument. It was "designed to promote and facilitate a divorce." To the wife it says, all you have to do is say you want to marry again and your husband must sue you for divorce. Inter alia, it further indicates to her "but if he does, you must not defend." I feel that this contract cannot be upheld, and that the judgment in the circuit court is wrong and should be reversed and judgment entered here dismissing plaintiff's bill. James T. Blair and Elder, JJ., concur in these views.