Alexandre v. Davis

• Decision Date: 19 January 1976
• Parties: Dianne Davis ALEXANDRE, Plaintiff, v. Joseph E. DAVIS, Defendant.
• Court: New York Supreme Court

Page 757

394 N.Y.S.2d 757

90 Misc.2d 368

Dianne Davis ALEXANDRE, Plaintiff, v. Joseph E. DAVIS, Defendant.

Supreme Court, Special Term, New York County, Part I.

Jan. 19, 1976.

Silk, Slonim & Young, New York City, by Howard R. Slonim, New York City, for plaintiff.

Herbert Monte Levy, New York City, for defendant.

ARNOLD L. FEIN, Justice:

Plaintiff moves for (1) summary judgment in the sum of $46,939.20 predicated on the alimony and child support provisions of a separation agreement; (2) dismissal of the counterclaims in the answer of her former husband; (3) counsel fees; (4) leave to enforce that portion of paragraph 7 of the agreement which entitles her to examine defendant's tax returns once every three years; and (5) to amend the amended complaint to include a demand for all arrears due and owing to the return date of the motion.

Defendant cross-moves (1) pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action; (2) for summary judgment granting the relief sought in defendant's three counterclaims and dismissing plaintiff's first, fifth and sixth causes of action; and (3) to preclude plaintiff from offering evidence at trial pursuant to CPLR 3042(c).

So much of plaintiff's motion as seeks to amend and update the ad damnum clause of the amended complaint is granted. No possible prejudice can result to defendant from such relief. (CPLR 3025(b), (c); Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804, aff'd, 23 N.Y.2d 791, 297 N.Y.S.2d 298, 244 N.E.2d 869).

Two sons were born of the marriage, aged 5 and 8 years at the time of the agreement.

The agreement, entered into on May 3, 1965 during the parties' tenth year of marriage, provides in pertinent part:

"5. The Husband shall pay to the wife for her support and maintenance the sum of $600.00 per month * * *.

"a. Said payments shall be made to the wife whether or not she remarries and shall terminate upon the death of either the Husband or the Wife.

"6. The Husband shall pay to the Wife for the support, education and maintenance of their two children the sum of $500 per month for each child * * *."

The husband also obligated himself to pay for the children's education (par. 8) and for "traveling or living in foreign countries" related to their education (par. 4(g)). Plaintiff has submitted documentary evidence supporting her claim for reimbursement in the sum of $3,639.20 advanced to cover such expenses.

The agreement also provides that alimony and child support payments are to be increased prospectively every three years by 10% if defendant's income has increased by at least 10% during the previous three year period (par. 7).

A divorce was procured by defendant in Mexico on May 8, 1965. The agreement was incorporated by reference into the Mexican divorce decree. It appears that both parties have entered into second marriages. Defendant remarried on June 18, 1965, after obtaining the Mexican divorce. Defendant fully complied with all the terms of the agreement for approximately seven years. In January 1973, however, he ceased making payments under the agreement's child support and alimony provisions.

Defendant contends that (1) the agreement is invalid in its entirety in that it was conditioned on a "collateral oral agreement" to dissolve the marriage; (2) the alimony provisions in the agreement lacked consideration because plaintiff had remarried prior to its execution; (3) the agreement is against public policy to the extent that it provides for the survival of his obligation to pay alimony beyond the date of plaintiff's remarriage; (4) he entered into the agreement in reliance upon plaintiff's false denial that she and her present husband (Alexandre) "were having carnal relations with each other (and) were secretly planning to be married . . . or were married". Defendant claims he "did not discover the fraud" until 1973.

In his counterclaims, defendant seeks repayment of all monies paid under the alimony and child support provisions of the agreement and demands an accounting of all monies received by plaintiff for the support of their children. Defendant also claims (1) plaintiff has waived her right to examine his tax returns at this time because she has failed to exercise said right in the past; and (2) since he is required under the agreement to make special payments for his sons' travel and education he should not be required to pay the child support monies demanded in the amended complaint while his sons were away from plaintiff's home.

All of the grounds upon which defendant predicates his affirmative defenses and counterclaims are without merit. The alleged "collateral oral agreement", even if made, is insufficient to invalidate the separation agreement. The separation agreement contains no "express provision requiring the dissolution of the marriage * * * (nor) for the procurement of grounds for divorce." (General Obligations Law Sec. 5-311; Collins v. Johnson, 72 Misc.2d 1034 1035, 341 N.Y.S.2d 214, 215, aff'd, 75 Misc.2d 489, 348 N.Y.S.2d 136; Rosen v. Goldberg, supra; Gunter v. Gunter, 28 A.D.2d 666, 282 N.Y.S.2d 633, aff'd, 20 N.Y.2d 883, 285 N.Y.S.2d 855, 232 N.E.2d 853).

A provision in a separation agreement requiring a husband to make alimony payments after his wife's remarriage to another is enforceable and is not against public policy. (Collins v. Johnson, supra). As that case notes, the law is well settled that in the absence of a provision in the separation agreement terminating the husband's obligation on the remarriage of the wife, the husband will be required to comply with his agreement to pay alimony despite the wife's remarriage. (Graham v. Hunter, 266 App.Div. 576, 579, 42 N.Y.S.2d 717, 720; Gush v. Gush, 14 Misc.2d 146, 178 N.Y.S.2d 429, aff'd, 9 A.D.2d 815, 192 N.Y.S.2d 678). Nor will the adultery of the wife, even though it be open and notorious, bar her right to alimony under the agreement. (Leffler v. Leffler, 50 A.D.2d 93, 376 N.Y.S.2d 176; Murray v. Hassman, 26 A.D.2d 647, 272 N.Y.S.2d 490, aff'd, 19 N.Y.2d 828, 280 N.Y.S.2d 394, 227 N.E.2d 310). A fortiori, the obligation survives where express provision is made to continue such payments even after the wife's remarriage. Nor does the issue turn on the expansion of women's rights in the age of feminine liberation, nor one's discomfort at the notion of requiring a man to support a woman who is living with or married to another man. The husband is bound by the clear language of his agreement. (Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Nusbaum v. Nusbaum, 280 App.Div. 315, 113 N.Y.S.2d 440).

Defendant's reliance on Schley v. Andrews, 225 N.Y. 110, 121 N.E. 812 and Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501 is completely misplaced. In Schley, the agreement was held to be invalid because it expressly conditioned alimony upon the wife's procurement of a divorce. Sleicher held only that the wife was barred from recovering alimony for the period of the wife's remarriage to another where such second marriage was terminated by an annulment and the agreement provided for termination of support on the wife's remarriage. Sleicher's holding that the wife was entitled to resumption of support from her first husband under their separation agreement, after the annulment of her second marriage, would tend to support plaintiff here. However, to this extent Sleicher has since been overruled by Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, holding that the wife's remarriage finally terminated her right to support under an agreement so providing, albeit her second marriage was terminated by an annulment. These cases turned on the fact, carefully overlooked by defendant here, that the agreements involved provided for termination upon the wife's remarriage. The agreement sub judice expressly provides that support of the wife shall continue "whether or not she remarries".

Defendant's claim that he was defrauded into signing the agreement because he relied upon plaintiff's misrepresentations that she had not committed adultery is incredible as a matter of law. It is belied by his own testimony on his oral examination. At pages 29-35 of the transcript he describes discussions with plaintiff during the year prior to the separation agreement in which she stated "she desired to continue a relationship with" Jean Claude Alexandre, her present husband. During that period and prior thereto, defendant testified plaintiff went on several "social" trips with Alexandre with defendant's consent. In "late 1961 or early 1962" he was told by Alexandre's then wife that plaintiff and Alexandre "had been in various hotels and other places together * * * " (Transcript, p. 37). Defendant also testified that he was informed in 1964 that plaintiff and...