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Schluter v. Schluter

Decided: November 18, 1952.

CHARLOTTE M. SCHLUTER, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
FREDRIC E. SCHLUTER, DEFENDANT-RESPONDENT, CROSS-APPELLANT



McGeehan, Jayne, and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

A brief prefatory statement of the principal events arranged in a chronological order will best serve to display the subject matter of the present appeals.

The decree nisi dissolving provisionally the marriage between the parties to this action was made absolute by the entry of a final judgment on December 1, 1948.

Prior to the institution of this matrimonial action the parties under date of June 2, 1948, entered into a written agreement which contains the following recital of its object and purpose:

"WHEREAS, the parties desire to settle between themselves the incidental matters of alimony and custody, maintenance and visitation of the infant children of the marriage, provision for the establishment

and maintenance of a suitable home for the wife and children, and for the payment of costs and suit money incurred and to be incurred by the wife in the negotiations culminating in this agreement, and in the preparation and prosecution of said contemplated divorce suit, subject to the sanction and approval of the Court as to those items which by paragraph 10 hereof may be submitted for the court's approval."

A reproduction here of paragraphs 3, 9, and 10 of the agreement is informationally relevant:

"3. After the wife and children shall vacate the present home the husband will pay to the wife the sum of $250. per month as alimony, and the further sum of $750. per month toward the maintenance and support of the children and the maintenance of the new home at the standard deemed suitable with regard to their station in life (in addition to further provision for the benefit of the children as hereinafter provided), whether such home be temporary or permanent, such home or successive homes to be established and maintained for them by the wife as her and their home, said monthly allowances to be paid until the youngest child shall reach the age of 22 years, or if such youngest child shall not survive to reach the age of 22, such payments shall continue to and include the month of May, 1955. Said provision of $250. per month for the wife and $750. per month for the support of the children and for the maintenance of a home for them shall commence upon the date of the removal of the wife and children from their present home. The new permanent home, when acquired by the wife, shall be her sole and separate property.

9. The wife agrees to proceed with the acquisition of land and the procurement of plans and specifications for a new house without delay and to proceed with the letting of contracts and the erection of the house without delay after the payment to her of $25,000. and the securing to her of additional payments of $50,000. as aforesaid.

10. The decree nisi shall, with the approval of the Court, contain the above provisions for $250. per month alimony and $750. per month for the maintenance of the children and for their education, and for their custody and visitation, and any other parts of said agreement, appropriate for inclusion in the said decree, which shall mutually be agreed upon."

The agreement itself was not submitted to or approved by the court, but references to the terms of it were made by the plaintiff in her testimony at the final hearing.

The following similar provisions, however, were incorporated in the decree nisi:

"And it is further ordered, adjudged and decreed that defendant pay to petitioner in full satisfaction of all allowances and provisions for her support and maintenance and of defendant's obligation to furnish such support and maintenance a lump sum of $75,000. in instalments agreeable to the parties, final instalment to be paid on or before October 2, 1950, and regular monthly alimony payments of ...


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