#### Luttmer v. Luttmer.

(Decided May 30, 1911.)

Appeal "from Campbell Circuit Court.

1.. Husband, and Wife — A property contract entered .into between husband and wife after they have separated will be upheld if it .. is, .free from-fraud and overreaching on the part of the husband, and,.is .fairly,made-and understanding^ entered into by the wife. Such a contract under which the wife received absolutely one-third of th.e' property is upheld.'

Oosts- and Attorney’s Fees — In actions for divorce and alimony . the-¡husband-must' pay the -costs of each party, including an at- ' torheyid fee-for the wife, unless it shall be made to' appear that' the: .wife' is-in'-fa,ujt and has ample estate to' pay her costs and . / httoVney’-s -¡fee.

.■¿RBHST'jr EfKBJfcrCE for .¿ppellant.’

FRANK V. BENTON for appellee.

*845Opinion op the Cotjut

by Judge Cabeoul

Affirming.

In January, 1910, the appellant brought suit far. divorce against the appellee upon the statutory grounds that he had habitually behaved towards her for not less than six months in such cruel and inhuman manner as , to indicate a settled aversion to her and to destroy permanently her peace and happiness, and that he had cruelly beat and injured her in such a manner as indicated an outrageous temper in him and probable danger to her life from her remaining with him. She also ashed for the custody of her only child, then a boy about thirteen years old, for a reasonable 'allowance as alimony for the maintenance of the child, and for attorney’s-fees and costs.

The appellee traversed the petition, and set up that on the 3rd day of August, 1909,. he and the appellant entered into a written agreement, settling and adjusting all' property rights between them, which agreement.' also provided that he should have the custody of the child and be chargeable with his maintenance and, education. *

In a reply, appellant averred that the writing relied on as settling the property rights and the custody of the child was obtained by fraud and durésp and its rescission was asked.

■ In July^/1910, the appellee filed an amended answer and counterclaim, in which he sought a divorce from áp- - pellant on the ground of abandonment fop one year.

Upon the issues made by the pleadings, the case was prepared for trial, and a judgment entered dismissing, the appellant’s petition and awarding appellee a divorce, upon Ids counterclaim. It was further adjudged that" the appellee should pay the costs of the-action, , and an attorney’s fee of one hundred dollars to appellant’® attorney — no. mention being made of the'child. Of this;', judgment both parties complain. The appellant (Í) because the .contract concerning.the property was not .set, aside and a suitable allowance made to her for, alimony,. (2) because the custody of the.child was not awarded,!» her or some disposition made.that would enable her tb have a-part in his education and training, 13). because the allowance to her attorney was not adequate. The ^ *846■appellee complains of so much of the judgment as requires him to pay the costs and attorney’s fee.

The parties to this controversy were married in 1896, and there was horn to the marriage only one child. As the judgment granting appellee a divorce cannot be disturbed, it would serve m> useful purpose to comment on ¡the evidence, much of which was incompetent and irrelevant. We may say, however, as pertinent to the asserted right of appellant to be awarded the custody of the child, that ithere is evidence showing that she is not a suitable person to have charge of his training or education. The parties lived together as man and wife from the time of their marriage until June 3rd, 1909. On this date the causes that had for some years been operating to bring about a separation culminated in the refusal of appellant to cohabit with or have further marital relations with appellee, and the abandonment upon which appellee was granted a divorce occurred on this date. On August 3, 1909, the parties entered into a written contract, which provided in substance that appellee should pay to appellant $500.00, and to convey to her free from any right o.r claim of his a certain described parcel of land worth about $1.,800.00. She was'also given all of the furniture except one bedroom set.! The agreement further provided that she re-léais'ed alii right and claim to certain. other parcels of ground, and <eadhl surrendered any right to property thereafter acquired by the other. It was further agreed that—

> ‘ ‘ The said William F. Luttmer shall have the care and custody and be chargeable with the maintenance and education of William F. Luttmer, Jr., age twelve years, son of thei parties, hereto', and he shall be sent to the Ohio Military Institute or some" other like institution,' of learning. It is further agreed that the said William' Lrkttmer will not under any circumstances use any influence to prevent said child from visiting his mother when he is at home from school, and that each may visit said child at said institute a:s often as each may desire, and thalt neither will take any steps to prevent or interfere with said visits!” -

In compliance with this agreement, there was conveyed to the respective parties the real estate each was to' have, and the money and personal" property allowed *847appellant was paid and given to her in accordance with, the terms of the contract. In short, so far as the property was concerned, the terms of the contract were fully performed by both parties. Under it the appellant received real and personal property worth about $2,300.-00, and the appellee received property worth between five and sis thousand dollars. In other words, under the agreement the appellant received absolutely about one-third of the estate. The property thus divided has been saved out of the earnings of appellee, but until within the last few years of their married life the appellant by her industry and good business iúdgment and habits contributed no little to its accumulation. After the parties had legally separated, and there was no probability that they could again live together as man and wife, the arrangement about the property was entered into, and we think the evidence supports the view that the contract was fully understood and consented to by appellant, who ip adjusting HMs matter had the assistance and advice of her brother, an attorney-at-law, and other members of her family. It cannot fairly be said that appellant was induced to enter into the contract by fraud or duress or other improper influences. The appellant understood as well as appellee the value and character of the property owned by each, and the contract which was executed after a full and fair consideration represents an equitable and proper disposition of the property rights between these parties. Contracts like the one involved in this case when free from fraud and overreaching on ithe part of the husband, fairly made and understandingly entered into will be upheld. Loud v. Loud, 4 Blush, 453; Parsons v. Parsons, 23 Ky. L. R., 223; Bohannon v. Travis, 94 Ky., 59.

Much complaint is made by counsel for appellant that the appellee in violation of the letter as well as the spirit of Sthe contract has poisoned the mind of the child against his mother, and exerted bis influence to prevent the mother from seeing or receiving visits from her child. The conduct of appellee in introducing the child a.s a witness in bis behalf is also severely criticised. It is apparent from the evidence that the child has now little or no affection for his mother, and it is unfortunate that he should have been' called on as a witness to testify to the unhappy relations existing between his par-*848en'ts. It is also entirely reasonable to assume that the appellee has produced in the mind, of Ithe child an antipathy for Ms., mother, and yet when her misconduct is considered it is not singular that the boy, who is old enough to appreciate and understand .the duties and obligations ■ of a- wife and mother should be prejudiced against her- and naturally partial to his father 'with whom he lived on terms of the closest idtimacy. The boy has now .arrived at an age when it would be impossible for the court to- undertake by its orders to direct ■ or control his relation or association with his mother, and doubtless influenced by this reason the judgment did not make a.ny mention of the custody or- care of the cliild. If he' desires to visit'his mother, he is at an age when hie can do- s,o. of his. own volition,- there .is no insurmountable obstacle in the way of the mother re-establishing herself in the confidence and affections of her .son,, and. it ds natural to believe that this boy will not forgpt.jor forsake her if she mends,., her, ways ;and manifests a disposition to-be worthy, of bis ,'love and respect. But whatever the result may be, it is Main thnt the age of the boy puts the. situation beyond the power of the Cofirt. to control.- To the mother and the son its solution must be left. ■

• ‘ For appellee it is. insisted that'as,,the wife was in fault and had ..ample estate it was' error for the court to adjudge that he pay the costs and her attorney’s fee: In section 900, Kentucky Statutes, it is provided that—

> “In actions for diyorce. and ' alimony," the husband shall; pay the costs of each party unless it shall be made to’ appear' in the action that the wife is in fault and ha s’ample estate to pay the same.”

k" While.it'may be conceded- that the wife is in' fault, we axe not disposed to hold that in' the meaning of the statute she was possessed of such ample estate as. denied her the right to'recover from' her:husband attorney’s fee's "and costs-;' nor *do*we - think the .'stipulations of the marital agreement precluded the court from adjudging against -the appellant this cost.

' Upon the whole case we are not disposed to disturb the judgment of the lower eonrt, and so it is affirmed on .both appeals.