Sherman v. Sherman , 65 Mont. 227 ( 1922 )

MR. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

The only question presented upon this appeal is whether the existence of the agreement of separation is a bar to the action for divorce.

Our statute provides that husband and wife “may agree, in writing, to an immediate separation, and may make provision for the support of either of them and of their children during such separation.” (Sec. 5787, Rev. Codes 1921.)

An agreement of this character, fairly made and executed, free from fraud or imposition, coercion, or duress, will be upheld and enforced. (Lee v. Lee, 55 Mont. 426, 178 Pac. 173.) Such an agreement is not ordinarily a bar to an action for divorce for cause then existing or arising subsequently thereto, in the absence of a covenant, express or implied, not to sue for past offenses. (19 C. J. 82; 9 R. C. L. 376.) (Such exceptions as there are to this rule need not be noted here, being unnecessary to this decision.)

If, however, the agreement be entered into with the intent of bringing about or facilitating a divorce, it will be declared void. (Stebbins v. Morris, 19 Mont. 115, 47 Pac. 642.) Here the validity of the agreement is not questioned. On the contrary, defendant relies upon it and insists that because both parties have complied with its terms the wife’s suit should be dismissed. His contention cannot be maintained.

The court, upon considering the evidence submitted in support of the pleadings of plaintiff and defendant—each charging the other with cruelty—found for the plaintiff, and very properly approved the contract the parties had made for themselves. The judgment is affirmed!

Affirmed.

'Associate Justices Farr, Cooper, Holloway and Galen concur.