196 A.D. 472 | N.Y. App. Div. | 1921
Appellant and the plaintiff were married on the 18th of November, 1891. They lived together until 1908 and then separated and thereafter on the 29th of April, 1910, executed a formal separation agreement with the defendant Halpin as trustee. It is recited in. the separation agreement that the husband and wife were then living separate and apart and that three children had been born to them. The wife was awarded their custody. It provided that the husband and wife should continue to live separate and apart each free from the other’s marital control as if unmarried; and that they were at liberty to reside anywhere except that the wife was not to reside outside of the city of, New York without the consent of the husband while the youngest child, who was then
' The Nevada court made findings of fact, finding, among other things, that a written agreement was entered into by the plaintiff and the defendant on the 29th of April, 1910, “ for the benefit of said children, providing for their support and then custody, as set out by the terms of said agreement,” and found as conclusions of law, among other things, that
The plaintiff herein alleged that the defendant made certain payments under the agreement down to and including the month of August, 1911; that during the year from May 1, 1911, to M*ay 1, 1912, he received from A. B. Leach & Company the sum of $15,000 over and above his drawing account of $10,000, but failed to pay any. part thereof in accordance with the agreement and has failed to pay the plaintiff anything under the agreement since the month of September, 1911, and has failed and refused to pay the monthly allowance for the clothing of the youngest child, and in the fall of 1910 wrongfully neglected' and refused to provide for the education of the two older children, and on the 26th of August, 1911, notified plaintiff through the trustee that he would not make any further payment to her, and that he has not made any further payment'to her or to the trustee for her use and benefit since that time; that she did not make any written statement of her expenditures of the $12 a month on account of the youngest child until the 4th of June, 1911, at which time she furnished a statement of all such expenditures to that date but that the defendant made no complaint with respect to her failure in this regard until May, 1911, when he demanded a statement and she furnished it and he received and retained it without objection and that he has waived a strict performance of the provisions of the
The defendant put'in issue many of the material allegations of the complaint and pleaded as a first defense that the agreement was merged in the Nevada decree and that the provisions of the decree rendered it so inconclusive that the courts of this State would not enforce it. For a second defense, acts of the plaintiff are alleged, which it is claimed constituted a breach of the agreement on her part. They cqnsist in her taking the youngest child out of the State without his permission, in refusing to permit him to take the child over week-ends and in failing to render a statement of the expenditures for clothing for the child, in refusing to allow the child to attend certain schools selected by him, in influencing the children against him and instituting a certain action against him to have the separation agreement declared null and void, which "it is claimed molested him -in violation of the plaintiff’s agreement, and on these grounds he claimed that the plaintiff had breached the separation agreement and forfeited her rights thereunder as well as under the Nevada decree. For a third defense, he alleged that in the month of April, 1914, the separation agreement was canceled by mutual consent of the parties" and all of the defendant’s obligations thereunder for alimony were remitted in consideration of a new agreement by which he was to pay plaintiff $100 a month for her support and $50 a month for the support of the youngest child, over whose education he was to have control, and that for a long time thereafter he performed that agreement and the plaintiff acquiesced in and abided thereby and that he has duly performed it but that the plaintiff has breached it.
Evidence was offered on the part of the plaintiff tending
It is urged in behalf of the appellant that the separation agreement was merged in the Nevada decree, which is so inconclusive in its nature that the Nevada court could modify or annul it with respect to the alimony accrued thereunder and that, therefore, it is not enforcible in another jurisdiction. I am of opinion that those contentions are unsound, and that if the separation agreement were merged in the decree, the case is left in a more favorable light to the plaintiff than the theory to which the trial court confined the plaintiff and on which the case was submitted to the jury. On the assumption that the separation agreement was adopted with respect to alimony and the support of the children, as doubtless it might have been (Julier v. Julier, 62 Ohio, 90; Warren v. Warren, 116 Minn. 458; Wallace v. Wallace, 74 N. H. 256; Levy v. Levy, 149 App. Div. 561) and became merged in the decree, if the defendant claimed there was any violation of the decree, as thus constituted, on the part of the plaintiff sufficient to reheve him from liability for the alimony and support of the children therein provided for, I think it was incumbent on him to apply to the Nevada court for such relief and that having failed so to do he should be deemed to have waived any objection he might have on that ground with respect to moneys due for alimony and support of the children for the recovery of which this action was brought. If the separation agreement was merged in the decree the court, I think, would have been warranted in submitting to the jury only the question with respect to the amount unpaid. The provisions of the Nevada decree reserving to the court the power to modify or annul the provisions thereof with
Another alleged violation of the separation agreement by the plaintiff relates to the provisions by which she agreed .not to reside outside of the city of New York without the defendant’s consent or the approval of the trustee while the youngest son should be living and dwelling with her and that the father should be at liberty to take the child on certain occasions. The uncontroverted evidence shows that at all the times in question plaintiff maintained a residence for herself and the boy in the city of New York and that they there resided. On two occasions, without obtaining the consent of the defendant or the approval of the trustee, she took the boy out of the city for a short time but did not change their residence. One of these trips was on Sunday, July 2, 1911, when she and the boy went to Providence, It. I., to visit her former teacher and remained until the fifth. This was over a week-end and the boy had been with his father on Saturday and he had made no request to see the boy on Sunday and she endeavored to notify the defendant at his apartment before going but was unable to get in communication with him. The other was to Seaside Park, N. J., for a visit to the boy’s aunt who had invited them, where they remained three weeks. Plaintiff testified that the boy had been in the city all summer and was not accustomed to city life and the
The court in submitting the case to the jury instructed them, among other things, that the burden of proof was on the plaintiff to establish her cause of action by a fair preponderance of the evidence, and fully instructed them with respect to their duties in weighing testimony and determining the credibility of witnesses; that the plaintiff claimed for a balance owing under the separation agreement from the 1st day of September, 1911, to the time of the commencement of the action, which was the 28th of March, 1913; that the
The court instructed the jury as matter of law that the defendant’s letter of August 26, 1911, notifying her through the trustee that he would make no further payment under the contract, constituted a breach thereof on the part of the defendant, and warranted the commencement of any action to enforce any claim she was advised she had against him at that time. The letter was to the trustee and not to her but it was stipulated that it was transmitted to her by him by mail on or about its date. There was no request to have the charge corrected in regard to the letter having been sent to the trustee. At the close of the charge, defendant merely excepted to that instruction. It is now claimed that the court was not warranted in ruling as matter of law that this letter was intended as a repudiation of all liability under the contract by the defendant for the reason that no payment was then due from him under the contract and the next payment was not to fall due until. September first thereafter. The attention of the court was not drawn to that point. In the second sentence thereafter, the jury were instructed that if they found “ the contract, if breached, was breached by the defendant, then the plaintiff is entitled to recover a verdict at your hands,” and then it was left to the jury to say whether or not the writing of that letter constituted a breach of the contract and notice to the plaintiff that the defendant would not “ pay her any sum of money she was entitled to claim, any sum of money,” and they were instructed that if so, she was then justified in taking the child out of the city on account
It follows that the judgment and order should be affirmed, with costs.
Dowling, Smith and Merrell, JJ., concur.
I oncur in the view that the separation agreement was merged in the decree; and I also concur in the opinion that the power to modify the provisions for alimony and support of the children is not retroactive and does not apply to accrued sums.
Judgment and order affirmed, with costs.