14 N.Y.2d 365 | NY | 1964
Lead Opinion
In this action by a former wife to recover arrears due under a separation agreement the defense is illegality. We find the defense well founded under section 51 of the Domestic Relations Law since the affirmed findings of fact conclusively establish that the agreement was made as an inducement to divorce.
The parties agreed that the venue of the divorce action was to be the Virgin Islands and an oral agreement was reached providing for the payment of plaintiff’s traveling expenses to that jurisdiction. The check payable to the order of plaintiff’s
Finally there is the circumstance that on December 8, 1951, less than two months after execution of the separation agreement, plaintiff secured a divorce from defendant. Certainly the record, taken as a whole, may be viewed as evidencing the authority of plaintiff’s attorney to negotiate a collateral agreement by plaintiff to obtain a divorce. It follows that the trial court committed no error in admitting testimony of defendant’s attorney as to conversations with plaintiff’s attorney establishing the substance of the agreement.
The order appealed from should be affirmed, without costs.
Dissenting Opinion
(dissenting). Plaintiff has been defeated in her suit against her former husband to recover an arrearage under their separation agreement, which was entered into prior to a Virgin Islands divorce. His income averaged $23,200 per year. She was to receive $5,500 annually in monthly installments of $458.33, except that the amount which she was to receive was to be reduced to not less than $3,600 per annum if the husband’s annual income from trust funds were to fall below $10,000. They had been married for about 12 years. The Virgin Islands divorce decree did not incorporate the. agreement, but directed the payment of alimony in an equivalent amount which was later reduced.
We are at a loss to understand how the public policy of the State will be promoted by relieving defendant from his obligations under this agreement which he signed, and by denying to his former wife recovery thereon. There is no evidence that the value of the rights secured to her by this agreement was out of proportion to what a divorce court would normally direct to be paid for her support, or that it was not a fair equivalent of his legal obligation to support his wife at the time when it was made. Under such circumstances, as matter of law, it cannot correctly be held that this separation agreement constituted a ‘ ‘ contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife ’ ’ as provided by section 51 of the Domestic Relations Lav/. On the contrary, it was entered into in order to satisfy his liability to support his wife. Nothing in this agreement purports to require either of the parties to obtain a divorce from the other. It is not even conditioned on divorce, even though we have held, in effect, that such a condition would not invalidate it (Butler v. Marcus, 264 N. Y. 519). A separation agreement may be invalid, to be sure, which is conditioned on the obtaining of a divorce by the wife and which gives her so much more in value than her just deserts, as they would normally be appraised by a matrimonial court, as to constitute an inducement to obtain the divorce (Schley v. Andrews, 225 N. Y. 110; Murthey v. Murthey, 287 N. Y. 740). There is no evidence that this is that sort of situation. Upon the contrary, nobody contends that this agreement caused the dissolution of this marriage, or that it provides excessive benefits for the wife or was entered into for any other reason than to provide suitably for her support. Public policy is not served by compelling estranged marriage partners to contest in court every detail of their marital differences. There is usually bitterness enough as it is. One may think that public policy would be advanced by minimizing the bitterness rather than by increasing it. These people tried to adjust the financial details of an impending divorce which was already inevitable in
Agreements providing fully as generously for the wife were upheld in Matter of Rhinelander (290 N. Y. 31), Butler v. Marcus (264 N Y. 519, supra), and Yates v. Yates (183 Misc. 934). The decisive factor should not be the mere form of the transaction but the substance of it. If the wife is given substantially more than the equivalent to what she could obtain in court as inducement to bring an action for divorce, then, under the rule in Schley v. Andrews (supra) and similar cases, the
As has been stated, conditioning a separation agreement or divorce does not render it per se illegal (Butler v. Marcus, supra; Werner v. Werner, 153 App. Div. 719, approved in Hammerstein v. Equitable Trust Co., 156 App. Div. 644, 649-650, affd. 209 N. Y. 429; Hamlin v. Hamlin, 224 App. Div. 168-170; Kunker v. Kunker, 230 App. Div. 641-643).
The order appealed. from should be reversed and plaintiff allowed to recover the arrearage under the separation agreement, including reasonable attorney’s fees as therein provided.
Chief Judge Desmond and Judges Dye and Scileppi concur with Judge Burke; Judge Van Voorhis dissents in a separate opinion in which Judges Fuld and Bergan concur.
Order affirmed.