Lead Opinion
OPINION OF THE COURT
We are called on in this appeal to review the propriety of a determination that a portion of the separation agreement between the parties, which provides for monthly payments from the husband to the wife, should be voided. We conclude that the record does not support impeachment of the agreement and that, therefore, judicial intervention to alter the agreement is improper.
The parties were married in 1959. They have two children: Linda, born on March 8, 1960, and Robert, born on March 7, 1961. On May 22, 1973, they entered into a separation agreement. The ninth paragraph of the agreement, which is at the center of the controversy between the parties, states: “The husband agrees to pay to the wife for the support and alimoney [sic] the sum of Six Hundred ($600.00) Dollars per month, recognizing that his income presently prevent [sic] him from paying more.”
Although the defendant husband was not represented by counsel at the time of the execution of the agreement, there is some indication that prior to signing it he showed it to an attorney. Admittedly, defendant, a career police officer and a detective since 1965, showed the agreement to various friends of his who are attorneys, shortly after signing it. He also consulted a tax service and, as a result of advice received, claimed the- $600 monthly payment as alimony for income tax deduction purposes from 1973 up to and including 1980. At an examination before trial, defendant acknowledged that plaintiff’s attorney had never suggested that he was representing both husband and wife, but had always maintained that he was only representing the wife. Defendant was also told that he had a right to have an attorney of his own. Defendant testified at the trial that, prior to signing the agreement, he “glanced” at the document and the paragraph containing the payment obligation. He also acknowledged that, as of the summer of 1973, he interpreted the ninth paragraph of the agreement to mean that he was obligated to pay alimony or payments to the plaintiff wife for the rest of her natural days. At no time did defendant institute an action to reform or rescind the agreement.
The two children left home and were emancipated between 1977 and 1979. In July of 1978, defendant, on the advice of his present counsel, stopped making any payments to plaintiff. According to defendant he began putting the $600 monthly sum into a bank account “using my name and both children as beneficiaries * * * I consider it a trust fund or whatever”. He continued to take tax deduc
Plaintiff wife brought this action for a money judgment, based on the separation agreement. As revealed by the trial testimony, the dispute between the parties centers on the ninth paragraph of the agreement. The defendant testified that when he discussed the $600 figure with his wife, prior to signing the agreement, it was solely for the purpose of the “maintenance of the children and the upkeep of the house”, and not for the purpose of maintaining plaintiff. According to defendant, the only thing discussed was the sum of money to be paid for the house and the children, with no allocation between the two. Defendant stated that while he was aware, by the sum of 1973, that the ninth paragraph had no provisions for reduction or termination of payments, he “had it in [his] mind that [he] was going to stop once the kids were eighteen”.
Plaintiff claims that the $600 sum was intended to aid her in paying for all the household expenses, including the mortgage, her expenses and those of the children. The marital home is owned by the parties as tenants by the entirety. Plaintiff maintains that the sum was not allocated between alimony and child support, nor was the sum to be reduced when the children became adults, because it was anticipated that plaintiff’s needs and the household expenses would, in fact, continue to grow past the time the children reached majority. According to plaintiff, she asked for a cost-of-living increase, but defendant refused, stating that “[i]t will all even out as the years go by”. From this discussion, plaintiff came to the conclusion that defendant understood and agreed that the $600 sum was to continue after the children left home.
The case was tried on January 28, 1981, without a jury. The trial court found “that the parties agreed on the sum of $600 a month. The question of the support of the children and the expenses of the house are certainly a vital part of the discussion between the parties. At no time did either of them speak specifically to each other in terms of the payment to the wife for herself, for her personal support after the children were gone or after the marriage was terminated”.
Despite this reasoning, the court annulled the ninth paragraph, commencing February 1, 1981. The court stated the basis of this decision, as follows: “However, with respect to the agreement itself, the answer that is before this Court sufficiently recites enough of the mistake on the part of the plaintiff [sic] to permit the Court to relieve him, under the circumstances, of the continuing obligations of the agreement with respect to support payments. The language does say ‘support and alimony’. It therefore contemplated, to some extent, support of the children and alimony of the wife without allocation. The Court is unable to divide that sum of money and rewrite the agreement. Under the circumstance that the children have left, it is clear that the lack of a provision for allocation makes necessary the intervention of the Court, not for the purpose of rewriting, but only to annul a specific portion. I do not annul any other part of the agreement.”
II
Plaintiff appeals from so much of the judgment as annulled the ninth paragraph of the agreement. Her primary contention is that the trial court exceeded its authority by modifying a separation agreement to which both parties had assented. Defendant argues that the trial court “interpreted the Agreement and intention of the parties to make provision for child support for their children, and not alimony for the wife”, and that, therefore, since the children are emancipated, no further payments are required by the terms of the agreement. Alternatively, defendant maintains that the trial court properly exercised its equitable powers to rescind a portion of the agreement.
It clearly is not the case that the trial court interpreted the agreement as only allowing for child support, exclud
The ninth paragraph refers to “support and alimoney [sic]” (emphasis supplied). The meaning of the word “alimony” is unambiguous, being understood in both the lexicons of the legal world and of the general public as support for the spouse or former spouse, generally the wife (see, e.g., Gaines v Jacobsen,
Nor may it be said that the agreement is ambiguous on the issue of the reduction or termination of payments to be made when the children reached majority or became emancipated, so as to justify a possible inference from the parties’ conduct and the surrounding circumstances that payments were, in fact, intended to cease when either of such events occurred. It has repeatedly been held that
Our dissenting colleagues maintain that because “[t]he statutory obligation of child support terminates upon emancipation * * * [a]n express provision terminating the undertaking upon emancipation would be superfluous”. Such is not the case, if for no other reason than that parents can assume support obligations beyond those mandated by statute (Streuli v Streuli,
The dissent also maintains that the courts in Nichols (supra) and Rehill (supra), and the other cited cases “merely concluded that the express inclusion of some contingency terms logically excluded their finding of any additional unexpressed terms”. Apparently, the holdings in these cases are seen by the dissent as nothing more than applications of the maxim of contract interpretation “ex-pressio unius est exclusio alterius”, that is, “the expression in a contract of one or more things of a class implies the exclusion of all not expressed” (17A CJS, Contracts, § 312, p 172). However, none of the cases state that this rule of construction was the basis for its holding. Rather, the basis for the holding in Rehill (supra) and the other cited cases, with respect to unallocated provisions of support and alimony, is expressed in Nichols (supra, p 497): “[T]he courts have enforced the contract as written and refused to do what the parties had failed to do, that is, apportion the total sum”. Illustrative is Cogswell v Cogswell (
The case of Olmstead v Olmstead (
In 1951 the wife sought to recover sums allegedly due under the agreement. At that time, she no longer had custody of the two children, who had gone to live with the father by consent of both parties. The official referee, to whom the action was referred, directed the dismissal of the complaint. This court affirmed the referee’s determination, in a decision released shortly prior to the Court of Appeals holding in Rehill (supra), as follows: “The agreement provided for payment to appellant [wife] of a single sum periodically for support of herself and the two children of the parties. The children were not living with appellant, or being cared for by her, in the extended period of time during which respondent made no payments to her. The court may not award her a portion of the agreed amount. That would be tantamount to making a new agreement for the parties, which the court may not do” (Olmstead v Olmstead,
After the decision in this court, Mr. Olmstead, nevertheless, commenced making payments to his wife and continued doing so until the spring of 1961. The record of the case does not reveal whether the children moved back with their mother or not during this time. In any event, in March, 1962, the wife brought an action to recover arrears dating from April of 1961. The action was dismissed by the Supreme Court, the Justice citing the afore-mentioned 1953 decision of this court. On appeal, we briefly reviewed our prior decision and then declared “that determination was incorrect in the light of later decisions by the Court of Appeals (Nichols v. Nichols,
In sum, we can only conclude, following Rehill (supra) and like cases, that the ninth paragraph of the agreement involved here is unambiguous, providing for a fixed, unallocated sum of money for support and alimony to be paid to the wife on a monthly basis. Since the agreement does not provide for either payment reductions or a termination of this obligation resulting from the emancipation or coming of age of the parties’ children, it must be concluded that, under the agreement as written, such an event had no bearing.
Ill
The trial court attempted to avoid the inexorable demands of the separation agreement by holding that “the answer that is before this Court sufficiently recites enough of the mistake on the part of the plaintiff [sic] to permit the Court to relieve him, under the circumstances, of the continuing obligations of the agreement with respect to support payments”. While the trial court did not use either term, apparently, it was of the opinion that this case presented an appropriate opportunity for the exercise of judicial intervention in the form of either rescission or reformation. We conclude, however, that while rescission or reformation might be applicable in other circumstances to relieve an obligor from an unallocated payment provision contained in a separation agreement (see Rehill v Rehill,
“Under long accepted principles one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its contents” (Da Silva v Musso,
As with other contracts, a separation agreement can be impeached through the equitable doctrines of reformation or rescission. A claim for reformation, generally, must be based on an allegation of mutual mistake or fraudulently induced, unilateral mistake (Backer Mgt. Corp. v Acme Quilting Co.,
As afore-mentioned rescission and reformation are remedies which may be sought with regard to separation agreements, as with other contracts. However, separation agreements are unique insofar as they involve a fiduciary relationship existing between spouses. The sanctity of the marriage relationship requires “the utmost of good faith”, and, because of it, “a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract” (Christian v Christian,
Because of the import which is given to a person’s assent to any agreement, “to overcome the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties, evidence of a very high order is required” (Backer Mgt. Corp. v Acme Quilting Co., supra, p 219). The right to rescission or reformation must be proved by clear and convincing evidence (Backer Mgt. Corp. v Acme Quilting Co., supra, pp 219-220; Goodison v Goodison,
With the above general discussion in mind, we return to the case at bar. The possibility of a mutual mistake need not concern us; there is no indication in the record that the agreement does not comport with plaintiff’s intent (see Ross v Food Specialties,
Defendant’s answer contains no counterclaims and cannot be interpreted as setting forth an affirmative defense of partial rescission, as maintained by the trial court. The only language found in the answer which is remotely pertinent is found in his “second separate and distinct defense”, which reads as follows:
“That in order to induce defendant husband acting without benefit of legal counsel to enter into the contract set forth in plaintiff’s complaint herein, plaintiff stated and represented to defendant former husband that payments made by defendant husband to the wife out of which it is understood she will support their minor children, (now emancipated) would relieve defendant husband of duty, to support minor children after separation rather than a separate clause in the agreement spelling out payment of a specific sum as support for the minor children.
“That such statements were false and were known to the plaintiff to be false at the time they were made. That in truth and in fact there are important differences between payments made by defendant former husband to the plaintiff wife out of which it is understood, however, without benefit of clear language she will support her minor children, (now emancipated) and those payments which the terms of an agreement fix as a sum which is payable for the support of minor children with benefit of clear language.
“That defendant husband did not know the truth with regard to such statements and representations but believed them to be true and relied thereon and in such
Nowhere does defendant state, in the above-quoted paragraphs, that he was misled into thinking that his payment obligations would terminate on the children’s emancipation or on their reaching the age of majority. The defense, to the extent that it is intelligible, seems to be saying that defendant was told that payments made pursuant to the agreement would exhaust his obligations of child support, i.e., that he had no obligation to support his children beyond the payments to his wife required by the contract. Plaintiff does not now claim differently.
The general rule is that an affirmative defense is deemed waived if not raised in the pleadings (CPLR 3018, subd [b]; De Lisa v Amica Mut. Ins. Co.,
More important than the failure to plead is the fact that the evidence presented did not justify a partial rescission. Assuming, arguendo, that defendant has clearly shown that he signed the agreement with a mistaken notion of what it entailed, unilateral mistake alone is an insufficient basis for reformation or rescission (Winant v Winant,
The trial transcript is bereft of any allegation, much less evidence constituting clear and convincing proof, that plaintiff made misrepresentations, fraudulent or otherwise, causing defendant to believe that his obligation would cease on the children’s emancipation or majority, thereby inducing him to sign the agreement (see Seyfried v Greenspan,
In our view the provision for unallocated payments to the wife is not manifestly unfair. There are various reasons that parties to a separation agreement would wish that a payment provision not allocate between alimony and child support. The most notable, perhaps, and one which defendant certainly could not quarrel with, is that the spouse who makes the payments can claim the total amount as alimony for tax purposes (see Richards v Richards,
We also find no overreaching present in the execution of the separation agreement. The only allegation of such found in the record is defendant’s testimony on direct that when he was in the office of plaintiff’s attorney, just before signing the agreement, plaintiff’s attorney discouraged him from getting a lawyer by telling him that a lawyer would be expensive and that he didn’t need one, since the agreement contained everything that the parties had previously discussed. It is well settled that the mere fact that a party to a separation agreement was unrepresented does not, without more, establish overreaching (Goodison v Goodison,
The comment by plaintiff’s lawyer, assuming it was made, that the agreement contained everything that the parties had discussed has not been contradicted by defendant. While, perhaps, the agreement contained matters neither discussed nor intended by defendant, a conclusion with which we by no means are in agreement, defendant cannot lay the blame for any misconception on plaintiff or her counsel. In Goodison v Goodison (
Not only do we find that defendant’s assent to the separation agreement was not induced by any wrongful conduct on the part of plaintiff or her attorney, but we are also of the view that a finding of mistake on defendant’s part, however caused, is unwarranted. Contrary to defendant’s remonstrations at trial, it is apparent that he intended to provide maintenance for his wife. Not only is this expressed in the agreement, but the surrounding circumstances and defendant’s conduct demonstrate that this is so. At the time the agreement was signed, the two children were 12 and 13. Defendant was working two jobs. Plaintiff
The most that can be said in defendant’s favor is that while he intended to pay alimony and child support, he only expected to have to pay support under the contract while the children remained children. It does not appear to us that defendant proved by clear and convincing evidence that he had such a mistaken belief. After all, he agreed to unallocated payments, and, despite being aware of the agreement’s language and having had numerous friends who were attorneys read the document, he made no effort to reform or rescind the agreement.
Defendant’s conduct over the years is significant, not only because it is indicative of whether in entering into the agreement he was operating under a misconception, but also because it demonstrates the existence of ratification. “The power of a party to avoid a contract for mistake or misrepresentation is lost if after he knows or has reason to know of the mistake or of the misrepresentation if it is non-fraudulent or knows of the misrepresentation if it is fraudulent, he manifests to the other party his intention to affirm it or acts with respect to anything that he has
We therefore conclude that the ninth paragraph of the agreement between the parties should not be annulled. Not only did defendant fail to properly raise in his answer, by affirmative defense or counterclaim, the contention that this paragraph should be rescinded, but, more importantly, he failed to show that his assent to the terms of the agreement, which are not manifestly unfair, was the result of mistake or induced by fraud, duress, or overreaching. Moreover, by reaping benefits over the years from the provision in question and by not bringing an action for rescission or reformation, defendant ratified the agreement. Since the ninth paragraph should not have been rescinded, we have no occasion to consider whether the separation agreement is severable (see Matter of Wilson,
Accordingly, the judgment should be reversed insofar as appealed from by deleting the third decretal paragraph insofar as it purports to annul the ninth paragraph of the separation agreement.
Dissenting Opinion
(dissenting). The record shows in this case that in response to the plaintiff wife’s action for a money judgment on the parties’ May 22, 1973 separation agreement the defendant husband’s answer awkwardly alleged,
Although the technical term “reformation” was not used during the course of litigation until this appeal, both parties deliberately and extensively elicited paroi evidence during the course of trial relevant to such relief.
It was not disputed that the parties alone, without benefit of counsel, sat down one day at their kitchen table and agreed that defendant would pay plaintiff $600 monthly to maintain the marital residence and support the children there. There was no conflict as to defendant’s moving out of the home, or as to such issues as custody, visitation or insurance coverage. The defendant denied negotiating the issue of a cost-of-living adjustment or contingencies affecting the monthly amount; plaintiff testified that defendant had refused the cost-of-living increase and payments for the children’s college education on the ground that the costs would “all even out as the years go by”. Having in mind the experience of their neighbor, whose husband had taken their children and moved into a new house, plaintiff said she and her husband specifically intended to provide enough support to maintain the marital residence for the benefit of their two children, who, at their age, needed the stability of their neighborhood friends and the familiarity of the home.
Plaintiff agreed with defendant’s testimony that they had never discussed under what circumstances, such as remarriage, the payments would cease. On redirect, however, she said she had “believe[dj” that he had been aware of the unconditional, perpetual nature of his obligation; she said this was an inference she drew from his refusal to agree to a cost-of-living adjustment despite the fact that he would have a good pension after 20 years’ service in the local police department while she was just starting out as a real estate sales agent.
After their kitchen table talk, an attorney representing plaintiff drew up the instrument executed May 22, 1973, which provides in paragraph ninth that “[t]he husband agrees to pay to the wife for the support and alimoney [sic]
Trial Term found that the parties had agreed on the sum of $600 monthly as support for the children and upkeep of the marital residence, which at the time of trial in January, 1981 was owned by the parties as tenants by the entirety. It further found that at no point did either specifically address the issue of what portion, if any, of the installments was to be allocated to alimony when the children became emancipated or if the plaintiff remarried.
Since defendant had made payments under the agreement to his wife and on his own initiative to a bank account later while taking full advantage of the income tax deduction for alimony through 1980, the court awarded judgment to plaintiff for all amounts due under the language of the support provision up to the date of trial. Since the answer had sufficiently raised the issue of mistake, however, the court additionally ruled that it would strike from the separation agreement the entire support provision. The court reasoned that its language contemplated support of plaintiff and the children without allocation, and the court itself could not redraft it to reflect any
It is clear on this record that Trial Term correctly struck the support provision in the exercise of its equitable power to reform the written instrument imperfectly expressing the parties’ limited agreement concerning alimony and child support.
It is well settled that the object of reformation is to conform the written instrument to the actual agreement of the parties (see Backer Mgt. Corp. v Acme Quilting Co.,
A party relying on the instrument cannot defeat a claim for reformation on the ground of the other party’s failure to read or understand the instrument (see Hart v Blabey, supra, p 262; Albany City Sav. Inst. v Burdick,
With the exception of plaintiff’s unpersuasive comment, contradicting her other testimony, that she “believed” that defendant had known his agreement was to be a perpetual and unconditional obligation, the testimony of the parties supports Trial Term’s findings to the effect that the parties never addressed and therefore never resolved the issue of how (and whether) defendant’s monthly payments were to be reduced or eliminated upon the children’s emancipation. The evidence shows their attention had been focused solely on the issue of keeping the marital roof over the heads of those children. It was, of course, inconsistent for Trial Term to reform the parties’ writing to eliminate the support provision at the same time it awarded plaintiff a money judgment under the same provision and preserved the provision granting plaintiff exclusive occupancy of the marital home. Since defendant failed to cross-appeal from the judgment, however, this court cannot cure the error. Furthermore, the parties’ failure to agree on the nature or extent of defendant’s statutory obligation of spousal support does not relieve defendant of that obligation.
Nevertheless, the record fully supports the trial court’s reformation of the instrument memorializing the parties’ separation agreement respecting alimony and child support — or, more accurately, maintenance of the marital
The statutory obligation of child support terminates upon emancipation (see Domestic Relations Law, § 32, subd 3; Family Ct Act, § 413; Social Services Law, § 101, subd 1). Thus the natural and logical inference to be drawn from the incorporation of this statutory obligation in a separation agreement is that the contractual obligation thus created is limited in duration to the children’s minority. An express provision terminating the undertaking upon emancipation would be superfluous.
It is of course true that the parties’ failure to allocate stated portions of defendant’s undertaking between child support and alimony would permit the drawing of an inference that emancipation was not intended to work a reduction in the amount of the undertaking because the entire undertaking would be subsumed under the head of alimony at that point. But it must be emphasized that these contradictory inferences remain inferences of fact.
There is simply no authority for the proposition that an unallocated, unitary provision for alimony and child support — in the absence of any term of limitation or condition — raises an irrebuttable legal presumption that the parties intended no modification of the undertaking upon the children’s emancipation. The parties’ failure to express the consequences of emancipation in their agreement certainly does not mandate a finding that their omission was intentional and that, accordingly, the undertaking was meant to be unaffected by emancipation.
Furthermore, since the court here had expressly found as a fact that during their negotiations, the parties had never even addressed the consequences flowing from emancipa
In the first place, the decisions, that have refused a reduction in an unallocated provision for alimony and child support upon emancipation merely construed separation agreements that, unlike the agreement proved here, contained express terms dealing with future contingencies such as emancipation or remarriage. Applying the standard rule for the construction of integrated written contracts, the courts merely concluded that the express inclusion of some contingency terms logically excluded their finding of any additional unexpressed terms. (See Nichols v Nichols,
In the second place, the support provisions of a separation agreement are not an all-or-nothing proposition. The duration of the agreement to make periodic alimony payments need not be coextensive with the statutory obligation of support in order to escape invalidation by former section 5-311 of the General Obligations Law, which limited attempts to relieve spouses of their statutory support obligations (see Kromberg v Kromberg,
Upon emancipation of the parties’ children, therefore, defendant’s contractual undertaking to pay periodic sums in satisfaction of his alimony and child support obligations terminated for lack of any agreement addressing his post-emancipation statutory liability. The trial court thus properly ruled that the entire provision for alimony and child support in the instrument sought to be reformed was no longer effective.
Accordingly, the judgment must be affirmed insofar as appealed from.
Titone, J. P., and Gulotta, J., concur with Gibbons, J.; O’Connor and Boyers, JJ., dissent and vote to affirm the judgment insofar as appealed from in an opinion by O’Con-nor, J.
Judgment of the Supreme Court, Westchester County, dated April 22,1981, reversed insofar as appealed from, on the law and the facts, with costs, and the third decretal paragraph is deleted insofar as it purports to annul the ninth paragraph of the parties’ separation agreement.