133 N.Y.S. 1084 | N.Y. App. Div. | 1912
The application resulting in the order appealed from was made on the ground of a change in the financial condition of the parties since the entry of the decree. The matter was referred to a referee, who took testimony and reported in favor of a reduction of alimony to $100 a month, hut upon a motion to confirm the report, the court at Special Term reduced the allowance only to the sum of $150 a month. If the only question in the case were that presented by the evidence relating to the changed financial condition of the parties we might not be disposed to interfere with the discretion of the Special Term.
After the action for divorce was brought the parties entered into a written agreement by which the defendant, in terms “for himself, heirs, executors, administrators and assigns,” agreed to pay the plaintiff $300 a month during the term of her natural life, and stipulated that in case of his prior death, such payments should continue during the term of her natural life, so long as she remained unmarried, and should be a charge upon his estate. He also expressly agreed that he would not “in any action or proceedings or in any manner-apply for a modification of the terms of this agreement.” The plaintiff on her part agreed not to apply in any action or proceedings for an increase.of said sum, and she further agreed to execute to the defendant a release of her right of dower in and to real estate owned by him of the value of over $100,000. She testified, and it was not denied, that she had executed said release. The agreement also contained this provision: “Fifth. The party of the second part further consents that in said action there may be inserted in the decree of divorce, in the event of such decree being granted the party of the first part, a provision allowing the party of the first part alimony at the rate of Three hundred ($300.00) Dollars per month, the provision in said decree not to affect the terms of this agreement.”
The learned referee was of the opinion that the agreement was void as against public policy, and that it was merely intended as a stipulation in the action and not as an independent agreement. The contract did not recite that the parties were then living separate and apart, but the evidence tends to
Of course, the contract did not have the effect of depriving the court of jurisdiction. The question is whether the court in the exercise of its jurisdiction will ignore a valid contract, fixing the amount which the wife is to have for her support. It may be granted that the contract obligation cannot be enforced by contempt proceedings whereas the decree of the court may be. But the answer to that objection, so far as this application is concerned, is to be found in the fact that the defendant is concededly able to pay the amount agreed upon. While the court doubtless has jurisdiction to modify its decree and to leave the parties to the enforcement of then’ contract rights by action, we do not think the evidence in this case sufficient to justify such action. Within a few days after the final decree of divorce, the defendant, in disregard, if not in contempt of it, contracted a second marriage in another State, and he concedes that he makes his present wife a monthly allowance of $500. for household expenses. He cannot evade the obligation imposed upon him by his contract and the decree of the court by incurring new ones.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements to plaintiff, and motion denied, with ten dollars costs and disbursements on the motion to plaintiff. Order to be settled on notice.
