108 Misc. 287 | N.Y. Sup. Ct. | 1919
The parties are husband and wife. The action is to set aside an agreement of separation entered into in December, 1916. The parties have two minor children whose custody was given to the plaintiff by the agreement, which required the defendant to pay twelve dollars a week for the support of the plaintiff and the maintenance of the two children. At the time the agreement was executed, the defendant was a teacher in the public schools, receiving $2,400 a year and owning a two-family dwelling in which he had an equity of several thousand dollars. The children were then twelve and five years of age respectively.
The defendant’s treatment of the plaintiff had been cruel, and, in the fall of 1916, she had been obliged to leave him. She had her two children, and for some time the defendant paid twelve dollars a week for the support of her and them. The plaintiff was apprehensive that defendant might get possession of the children, and, after being parted for a few months, she started suit to obtain a separation. Shortly thereafter the parties all met in her attorney’s office, and there the agreement in question was made. There was no duress nor fraud used or practiced. The
The question is whether the agreement can be set aside because it was improvidently made and was out of proportion to the defendant’s ability to pay.
The former disabilities which prevented married women from contracting, either with their husbands or others, have been removed by legislation. Now they may contract the same as if unmarried, and with their husbands too, except that they “ cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.” Dom. Bel. Law, § 51. There is no question that when husband and wife are living apart, they may make a valid agreement of separation. But to be valid, the agreement cannot relieve the husband from his obligation to support the wife. An agreement which, sought to do that would run counter to the statute.
Before married women had their present powers and when contracts between husband -and wife were void at law and could be upheld only in equity, then agreements such as this were enforced only where the provision for the wife and children was equitable and proper. Since the provisions of the Domestic Relations Law were enacted, the courts have likewise held that such agreements would not be upheld where the provision for the wife and children was inadequate and disproportionate to the husband’s means. Hungerford v. Hungerford, 161 N. Y. 550; Winter v. Winter, 191 id. 462, 474; Pelz v. Pelz, 156 App. Div. 765; Ducas v. Guggenheimer, 90 Misc. Rep. 191; affd., 173 App. Div. 884. There is nothing in the decision of Johnson v. Johnson, 206 N. Y. 561, at variance with the cases cited. This is pointed out in Pelz v. Pelz. Moreover, the judge who wrote the opinion in the Johnson case was one of those who concurred in the opinion in Winter v. Winter, supra.
It is not an answer to say plaintiff has agreed to accept a small weekly payment and that that determines its sufficiency. Even though she might be sup
It is not necessary for the plaintiff to refund the amounts paid to her under the agreement, for they have all been used in caring for herself and her children. Hnder such circumstances, the action may be maintained without offering to make any return. Galusha v. Galusha, 138 N. Y. 272, 284; Hungerford v. Hungerford, 161 id. 550, 553; Pelz v. Pelz, 156 App. Div. 765, 769. Plaintiff is entitled to judgment, with costs.
Judgment for plaintiff, with costs.