Dunbar v. Dunbar
190 U.S. 340 (1903)

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U.S. Supreme Court

Dunbar v. Dunbar, 190 U.S. 340 (1903)

Dunbar v. Dunbar

No. 244

Argued April 16, 1903

Decided June 1, 1903

190 U.S. 340

Syllabus

After obtaining a divorce on the ground of his wife's desertion, she not opposing the decree, the husband executed and delivered a written contract by which he agreed to pay the wife a specified sum annually for her own support during her life or so long as she remained unmarried, and also to pay her a specified sum annually for the support of their minor children whose custody was awarded by the decree to the wife. Subsequently the husband was adjudged a bankrupt and discharged. The wife sued for amounts accrued prior to the discharge both for her own support and for that of her children.

Held that, as to the amount payable for her own support, it was not a contingent liability provable under the Bankruptcy Act, and the contract was not of such a nature as would permit the obligor to be discharged from the obligations thereunder by a discharge in bankruptcy.

Held that, as to the amount payable for the minor children, the contract was a recognition of liability on the part of the father to support them and, as it does not appear that the amount was unreasonable, the contract to do so could not be affected by a discharge in bankruptcy, and the fact that the money was payable to the mother did not affect the situation.

The defendant in error, being the plaintiff below, brought her action in October, 1899, against the plaintiff in error in the Municipal Court of Boston to recover moneys alleged to be due upon a contract which was set forth in the complaint. Issue was joined and the case tried before a single justice, and judgment ordered for the defendant, with costs. An appeal was taken to the Superior Court of the County of Suffolk, and that court ordered judgment for the plaintiff for one branch only of her claim. The case was reported to the Supreme Judicial Court for the commonwealth, and that court ordered the court below to enter judgment for the plaintiff for both branches of her claim, 180 Mass. 170, and the case was remanded to the superior court for the purpose of entering such judgment. Pursuant to the directions of the supreme court, the superior court did enter judgment against the defendant for both branches of her

Page 190 U. S. 341

claim, for the sum of $851.60 and costs. The defendant then obtained a writ of error from this Court, directed to the Superior Court of Massachusetts, where the record remained.

The case shows these facts: the parties were husband and wife, who, in 1889, were living apart, the husband in Ohio and the wife in Massachusetts. In May, 1889, the attorney for her husband came to Massachusetts and saw Mrs. Dunbar, and told her that her husband was about to seek a divorce from her. The wife at this time had no means, and the two sons of the marriage, then respectively nine and twelve years old, were living with her. The purpose of the visit of the attorney was to obtain some assurance from her that she would not contest the case, and, if she did not, that the husband would make provision for aiding in the support of herself and her sons until they arrived of age. The wife denied any intended desertion of her husband, but the result of the negotiations after the wife had taken counsel of friends was to give assurance to the attorney that no defense would be interposed if he made some suitable provision for herself and her children.

Upon the return of the attorney to Ohio, a suit for divorce was commenced by the husband, and the summons served by publication. No appearance was made, and there was no opposition to the decree of divorce, which was obtained in July, 1889. It adjudged that the marriage contract theretofore existing between the parties was thereby dissolved, and both parties released from the obligation of the same, and

"that the custody of the children of such marriage, one boy, Harry H. Dunbar, aged twelve years, and Willie W. Dunbar, aged nine years, be, and the same are, to remain in charge and under the control of the said Lottie E. Dunbar, the said Horace B. Dunbar to have the privilege of seeing said children at all reasonable times."

The ground of divorce was stated, and the court found,

"upon the evidence adduced, that the defendant has been guilty of willful absence for more than three years last past from plaintiff, and that, by reason thereof, the plaintiff is entitled to a divorce as prayed for."

After the divorce, the husband sent to a friend of his wife, to be delivered to her, in performance of his agreement, a written

Page 190 U. S. 342

contract in which he bound himself to pay to Lottie E. Dunbar, of Ashburnham, Mass., five hundred dollars yearly, so long as she remained unmarried, in monthly installments. In that contract, he also agreed to pay

"to our children, Harry H. Dunbar and Willie W. Dunbar, the sum of two hundred and fifty dollars each, yearly, until they each attain the age of fourteen years; after that age, they are to be paid by me such extra allowance as will give them a good and sufficient education befitting their station in life, and a suitable maintenance until each attains the age of twenty-one years."

This writing was signed by the husband and acknowledged before a notary public of Hamilton, Ohio.

Payments upon this contract were made by the husband, but, in 1896, they had become somewhat in arrears, and disputes arose as to the validity of the agreement. Thereafter, another contract was entered into, and payments were made as called for in that contract until some months prior to December 2, 1898. On such last-named date, the defendant was adjudged a bankrupt, on his voluntary petition in bankruptcy, in the United States District Court in bankruptcy, Southern District of Ohio, Western Division, and on April 24, 1899, was discharged from all debts and claims provable, under the act of Congress relating to bankruptcy, against his estate, existing on the second day of December, 1898.

In the schedule of the defendant, it appeared that he named the plaintiff as a creditor, as follows:

Lottie E. Dunbar, Charlestown, Mass. . . . . . . . . $ 540

Alimony due up to present time.

Lottie E. Dunbar, Charlestown, Mass. . . . . . . . . 1,300

Alimony payable yearly.

The plaintiff, at the first meeting of the creditors in bankruptcy proceedings, which was held before a referee appointed therein, appeared by an attorney, who produced and filed his power of attorney and filed her claim for $691.63, for installments on the contract due to December 2, 1898. The husband had paid nothing on the contract since sometime before December 2, 1898, and finally the wife commenced an action to recover the amounts due thereon.

Page 190 U. S. 343

The following is a copy of the contract sued on:

"Controversies having arisen concerning the agreement heretofore made between Horace B. Dunbar and Lottie E. Dunbar in September, 1889, in consideration of said Lottie E. Dunbar's forbearance of suit on such controversies, and in settlement of all such controversies, and in substitution of said agreement of September, 1889, and in further consideration of the release by Lottie E. Dunbar and in satisfaction of all claims under said original agreement, Horace B. Dunbar agrees with the said Lottie E. Dunbar as follows:"

"That said Horace B. Dunbar will pay to Lottie E. Dunbar during her life, or until she marries, for her maintenance and support, yearly, the sum of five hundred dollars, and will pay to her yearly for the support and maintenance of her child, Harry H. Dunbar, the sum of four hundred dollars until he shall attain the age of twenty-one years, and shall pay to her yearly for the support and maintenance of her child, Willie W. Dunbar, the sum of four hundred dollars until he shall attain the age of twenty-one years, all said sums to be paid in equal monthly installments between the first and tenth of each and every month, the first installment being for the month of May, 1896, shall be paid between the first and tenth of June, 1896."

"And, in addition to the foregoing, said Horace B. Dunbar agrees to pay the further sum of one hundred dollars between the first and tenth of July, 1896, over and above the installment otherwise due for said month."

"And the said Lottie E. Dunbar hereby agrees that she has not, nor shall she have, any other claim or demand against Horace B. Dunbar for contribution to her support and maintenance, or for the support, maintenance, or education of said children, save and except as fixed and limited by this agreement."

Properly signed by both parties and witnessed.

The particulars of her claim were stated as follows:

Horace B. Dunbar to Lottie E. Dunbar, Dr.

Horace B. Dunbar to Lottie E. Dunbar Dr.

1. To installments due under covenant for

alimony from December, 1898, to October

1, 1899, ten months, at $41.66 a month . . . . $416.60

Page 190 U. S. 344

2. To monthly allowance due her for support

and maintenance of Willie W. Dunbar, from

December, 1898, to October 1, 1899, ten

months at $33.33 a month. . . . . . . . . . . 333.30

--------

$749.90

The defendant pleaded his discharge in court of the state held that it was not good.

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