50 N.Y.2d 277 | NY | 1980
Lead Opinion
OPINION OF THE COURT
In this plenary action in contract brought by a wife who
The wife then commenced this action in Supreme Court, Nassau County, seeking a money judgment in the amount of the difference between the support and maintenance payments established by the separation agreement and the reduced amount provided by the Family Court order.
Section 24 of the separation agreement provides as follows: "In the event that any court of competent jurisdiction shall hereafter, by virtue of any statute, modify the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms hereof.” The husband contends that this provision should be interpreted as meaning that if any court of competent jurisdiction modifies the alimony and child support provisions of any divorce decree subsequently obtained, such shall also serve as a modification of the support and maintenance provisions of the separation agreement. Supreme Court agreed with that interpretation and held that pursuant to that provision the support and maintenance provisions of the separation agreement had been modified as a result of the Family Court order modifying the divorce decree, and thus there existed no disparity between the provisions of the agreement and the provisions of the Family Court support order. Since the wife’s claim was premised upon the existence of such a difference, Supreme Court ruled in favor of the husband and dismissed the complaint.
The Appellate Division, on the other hand, concluded that
It is true, of course, that the Family Court is a court of limited jurisdiction which lacks the power to modify the terms of a separation agreement, as opposed to the terms of a divorce decree, and that this power cannot be conferred upon that court by agreement of the parties. Even as interpreted by the husband, however, the provision in issue simply does not attempt to confer jurisdiction upon the Family Court. The provision neither purports to nor could it change the jurisdiction of the Family Court. Rather, according to the husband, it provides instead that if a court with jurisdiction to modify a divorce decree into which the separation agreement has been incorporated but not merged, does so modify the support provisions of the divorce decree, then the separation agreement itself is to be modified accordingly. Rather than attempting to confer jurisdiction upon the Family Court, section 24, as interpreted by the husband, would serve merely as a mutually agreed upon means of modifying the separation agreement to accord with the changes in the divorce decree. Although the parties could not have conferred subject matter jurisdiction upon the Family Court, no public policy precludes a prior agreement to extend the effect of any Family Court decision beyond the reaches which that decision is permitted by law. Certainly Family Court could not modify the agreement; the parties could, however, voluntarily agree that any modification of the decree would also serve as a modification of the agreement. Thus, were we to agree with the husband’s interpretation of section 24, we would reverse the order of the Appellate Division and reinstate the determination of Supreme Court. As it is, however, our examination of that section precludes us from adopting the interpretation proffered by the husband.
Section 24 of the separation agreement clearly does not provide that any modification of the support provisions of the divorce decree shall also be incorporated into the separation
It has been suggested that, since the separation agreement has been incorporated into the divorce decree, section 24 of the agreement is now also a part of the decree and thus the word "hereof’ may be deemed to refer to the decree as well as to the agreement. We find such a strained interpretation of an unambiguous provision to be unpersuasive. When parts of a separation agreement are incorporated into but not merged within a divorce decree, the separation agreement continues in effect as a separate and independent contractual arrangement between the parties (Goldman v Goldman, 282 NY 296, supra; see 2 Foster and Freed, Law and the Family, § 28:53). Thus, a change in the divorce decree cannot modify the separation agreement absent a clear expression by the parties of such an intent. Even were we to agree that the term "hereof’ refers to the separation agreement incorporated within the divorce decree as opposed to the separation agreement qua contract, the result would be no different in this case since the same logic would require that the "agreement” which is to be modified accordingly must also be the agreement within the decree, rather than the agreement which survives the decree. Rather than follow such a tortuous path, we consider it preferable to construe the word "hereof’ in section 24 as a reference to the contract and not to the decree.
Nor does this interpretation of section 24 render that provision meaningless. It is, of course, true, that the courts of this State enjoy only limited authority to disturb the terms of a separation agreement (compare Goldman v Goldman, 282 NY 296, supra, with Christian v Christian, 42 NY2d, supra, at pp 71-73). Moreover, any attempt to confer upon a court of any
Moreover, our interpretation of section 24 is buttressed by an examination of section 23 of the separation agreement, which specifically declares that the support and maintenance provisions of the separation agreement are to be read into the divorce decree, but are not to be merged within that decree, and are instead to survive it. Were we to agree with the husband’s interpretation of section 24, the specific declaration contained in section 23 would be rendered ineffective, for the net result of the husband’s interpretation of section 24 would be to merge the support and maintenance provisions within the divorce decree despite the contrary mandate of section 23. We refuse to interpret section 24 in such a way as to negate the clear and unambiguous intent expressed in section 23. Hence, we conclude that the separation agreement does not provide that any modification of the support and maintenance provisions of the decree will serve to modify the agreement as well, and the wife is thus entitled to recover upon her contractual right to support and alimony as provided by the original terms of the separation agreement.
Accordingly, the order appealed from should be affirmed, with costs.
It does not appear from the record that any appeal was taken from the Family Court order decreasing the amount of support and maintenance awarded by the Mexican court. We note that no challenge has been made in this action to the jurisdiction of the Family Court in that proceeding, and that the propriety of that order is not at issue in the instant case (see Goldman v Goldman, 282 NY 296; cf. McMains v McMains, 15 NY2d 283; see, also, 2 Foster and Freed, Law and the Family, § 28:64). Moreover, this case does not involve any challenge to the validity of either the separation agreement (cf. Christian v Christian, 42 NY2d 63) or the Mexican divorce decree into which it has been incorporated but not merged, nor is any judicial modification of the separation agreement sought by either party (see 2 Foster and Freed, Law and the Family, § 28:63). Rather, the dispute presented in this case concerns merely the proper interpretation of that agreement. Thus, the power of a court of this State to set aside a separation agreement incorporated into but not merged within a foreign divorce decree is not at issue on this appeal (cf. Harges v Harges, 46 Misc 2d 994).
Dissenting Opinion
(dissenting). The order of the Appellate Divi
In 1969 the parties entered into a separation agreement. Each side was represented by counsel. The lengthy and comprehensive agreement provides, among other things, for a division of all real and personal property, support for the wife and children as well as custody. It also anticipates and provides for various contingencies. Section 23 considers the effect of a subsequently obtained divorce decree and provides for the survival of those terms relating to "property rights”, child custody, support and alimony. Section 24 deals with the effect of a court-ordered modification of the husband’s support obligation. It states: "Modification by court decree: In the event that any court of competent jurisdiction shall hereafter, by virtue of any statute, modify the terms hereof with respect to support and maintenance, such modification shall apply to this Agreement with the same force and effect as though it constituted the original terms thereof.”
The defendant husband later obtained a bilateral Mexican divorce. The support provisions of the agreement were incorporated by reference in the Mexican decree but, in accordance with section 23, were "not merged therein”. Thus the divorce decree did not alter the husband’s support obligations. The question on this appeal concerns several Family Court orders which subsequently fixed the defendant’s support obligations at a level below the amount provided in the agreement.
In 1973 the plaintiff wife petitioned the Family Court for an order directing the defendant to support in the amount fixed in the agreement. The defendant cross-moved for a modification reducing his support obligation. The cross motion was granted and the defendant was directed to pay support in an amount less than the agreement provides. A similar order was entered in 1974. On both occasions the plaintiff was represented by counsel. In neither case, however, did she appeal the Family Court’s determination.
In 1976, three years after the original Family Court order was entered, the plaintiff commenced this action in the Supreme Court to recover the difference between the amount of support paid by the defendant pursuant to the Family Court orders and the amount initially fixed in the agreement. It was claimed that by paying the lesser amount the defendant breached the support terms of the separation agreement.
Special Term entered judgment for the defendant, relying
For the reasons stated at Special Term the order of the Appellate Division should be reversed and the defendant’s judgment reinstated. Special Term noted, of course, that the Family Court generally lacks the power to alter the support terms of a separation agreement. It held, however, that by adopting section 24 the parties "contractually agreed to be bound by any modification of the support provisions of the subject agreement which a court of competent jurisdiction may make in futuro(92 Misc 2d, at p 120.) The court also found that this provision was enforceable, noting that the plaintiff had been represented by counsel when she signed the separation agreement and during the Family Court proceedings. In my view that determination was correct.
Special Term’s construction of section 24 is reasonable, indeed the only reasonable interpretation under the circumstances. The plaintiff has been unable to propose any alternative. The majority suggests that the section was only meant to apply when the court is asked to consider the validity of the support provisions. A court, however, may consider the validity of a clause in a separation agreement without the aid of express contractual authority (see, e.g., Christian v Christian, 42 NY2d 63). Neither can section 24 be construed as an obscure attempt to salvage the agreement in the event the amount of the support provisions are found to be invalid; the agreement already contains a standard savings clause to this effect in section 21. Thus to "interpret” section 24 as applicable only in cases involving the validity of the support provisions renders the section unnecessary, useless and, in effect, a nullity.
On the other hand to hold that section 24 represents a contractual commitment by the parties to accept a court-ordered modification of the amount of the support provisions does not render section 23 ineffective as the majority suggests.
It is also important to emphasize that this was a negotiated agreement and that the Family Court proceedings which resulted in the modification of the support arrangements were fully litigated. Plaintiff was represented by counsel at every stage, and there is no reason in theory or on the facts of this case, why she should not be held to the terms of the agreement. A court should not, in guise of interpretation, nullify part of an agreement simply because one of the parties may have discovered, after several years, that a term originally agreed to has produced disagreeable results in practice.
Judges Jasen, Fuchsberg and Meyer concur with Judge Gabrielli; Judge Wachtler dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Jones concur.
Order affirmed.
The majority’s alternative suggestion, that the parties intended the section to be applicable in the event that a court of some foreign country should legally modify the agreement, involves a purely imaginary intent. Not even the plaintiff urges that this is what they had in mind when they included section 24 in the agreement, or that it would be proper to give the section such an esoteric meaning.
