283 A.D. 1096 | N.Y. App. Div. | 1954
— Action to recover unpaid installments due under a separation agreement, which was incorporated into a decree of divorce secured by plaintiff in Reno, Nevada. The agreement and decree required the defendant to make weekly payments to the. plaintiff for the support and maintenance of their two children and granted defendant rights of visitation. Defendant appeals from an order granting plaintiff’s motion for summary judgment. Order affirmed, with $19 costs and disbursements. Defendant asserts on this appeal that plaintiff may not recover because she breached the agreement by removing the children to Reno, Nevada, where she has remained and taken up a permanent residence, thereby depriving him of his rights of visitation. (Cf. Duryea V. Bliven, 122 N. V. 567, and Altschuler v. Altschuler, 248 App. Div. 768.) It is his contention, as embodied in an affidavit by his attorney, that it was the intention of the agreement that defendant should be allowed to exercise his rights of visitation in the home in which plaintiff and the children resided when the agreement was made, and not in a foreign State. This, of course, is merely the opinion of the attorney and is contrary to the plain and unambiguous terms of the agreement which provide that plaintiff may reside at such places as she may see fit to live in, that nothing contained therein shall be deemed to preclude either party from maintaining a suit for divorce in any jurisdiction, and that there were no conditions, promises or understandings between the parties except as provided therein. We must assume that defendant knew that if plaintiff should commence a divorce action in a foreign jurisdiction, she would be required to establish a