114 Misc. 321 | City of New York Municipal Court | 1921
The ease is submitted upon an agreed state of facts. The plaintiff and defendant were husband
I have not been able to find, nor have counsel cited, any decided case directly in point. The plaintiff relies upon the authority of the cases of Randolph v. Field, 84 Misc. Rep. 403; Galusha v. Galusha, 116 N. Y. 635, and Clark v. Fosdick, 118 id. 7. But in none of these cases had a final judgment of divorce been granted the defendant because of the adultery of the plaintiff. In the case of Randolph v. Field, supra, it was held that in an action by a wife to recover payments alleged to be due under a separation agreement, neither adultery on her part before the separation
In the cases of Galusha v. Galusha, supra, and Clark v. Fosdick, supra, it was held that the agreement was not invalidated by a subsequent violation of the marriage vow on the part of the defendant, nor by the granting of a decree of divorce to the plaintiff. Again these cases are clearly distinguishable in principle from the instant case. Where the wife has recovered a final judgment of divorce against the husband, his liability to provide for her support does not cease. The statute empowers the court to require the wrongdoing husband to provide for the support of the wife. The agreement creates an express contractual obliga
But in the instant case the husband (defendant) has recovered a final judgment of divorce against the wife, the plaintiff herein. His legal obligation to support her because of the marriage relation has come to an end. The court has no power to require him to pay alimony or in any manner to provide for her support. Unless he is to be held under the naked terms of the agreement, he is as free of obligation to her and of liability to provide for her support as before the marriage relation was contracted. The payments under the agreement would no longer represent any legal or moral obligation whatsoever. And yet it is contended that because there was a consideration for the agreement at the time it was made, the defendant must go on making the weekly payments to the plaintiff for the balance of her life. I cannot subscribe to that view.
That there can be a failure of consideration because of events happening after the making of the separation agreement would seem to have support in the Galusha case, above cited. At page 643 the court says: “The consideration for an agreement of separation fails, and the contract is voided when separation does not take place; or where, after it has taken place, the
But there is still another ground for holding .that the defendant is no longer liable under the terms of the agreement. I think there was an implied condition that the defendant’s obligation to make the weekly payments should terminate with his marriage obligation to support the plaintiff and his liability to provide such support by order of the court or otherwise. It will be observed that there is no express provision in the separation agreement as to the length of time the weekly payments shall continue. The agreement does not say that the payments shall be made during the plaintiff’s natural life. The plaintiff does agree to take the payments “ in full satisfaction for her support and maintenance.” It seems clear, then, that it was not within the contemplation of the parties that the defendant’s obligations under the agreement would survive a decree of absolute divorce in favor of the. defendant because of the plaintiff’s adultery. The agreement was in lieu of his legal obligation and liability to provide “ support and maintenance,” and was so accepted by the plaintiff. If such legal obligation and liability ceased to exist, there would no longer be any just basis for the weekly payments under the agreement, and it is reasonable to presume that the parties contemplated that the operation of the agreement would be limited accordingly. If, from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the defendant’s liability to furnish support because of the marriage, the implied condition exists, and it
So far as concerns the payments falling due under the agreement after September 30, 1920, the date of the entry of the final decree of divorce, judgment should be in the defendant’s favor. To hold otherwise would shock the common sense of justice. However, I think the defendant would be liable for any payments falling due prior to the entry of the final decree. In her bill of particulars the plaintiff alleges that the defendant “ has failed to pay plaintiff the said sum of Ten ($10) Dollars per week from the 25th day of September, 1920 to date.” The stipulation of the parties does not in express terms admit the allegations in the plaintiff’s bill of particulars, but it is obvious that such was the intention. It appears, therefore, that a weekly payment came due September 25, 1920. The plaintiff is, therefore, entitled to judgment for ten dollars.
Judgment for plaintiff.