Anderson v. Anderson

• Decision Date: 26 September 2014
• Docket Number: 878 CA 13-01525
• Citation: 2014 N.Y. Slip Op. 06415,120 A.D.3d 1559,993 N.Y.S.2d 220
• Court: New York Supreme Court — Appellate Division
• Parties: Gail A. ANDERSON, now known as Gail A. Halim, also known as Gail A. Decker, Plaintiff–Respondent, v. Joseph M. ANDERSON, Defendant–Appellant.

120 A.D.3d 1559

993 N.Y.S.2d 220

2014 N.Y. Slip Op. 06415

Gail A. ANDERSON, now known as Gail A. Halim, also known as Gail A. Decker, Plaintiff–Respondent

v.Joseph M. ANDERSON, Defendant–Appellant.

878 CA 13-01525

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 26, 2014.

Connors & Vilardo, LLP, Buffalo (Lawrence J. Vilardo of Counsel), for Defendant–Appellant.

Hiscock & Barclay, LLP, Buffalo (Joseph M. Finnerty of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI AND LINDLEY, JJ.

OpinionMEMORANDUM:

Defendant former husband appeals from an order that denied his request to terminate the consultation fees that were being paid to plaintiff former wife pursuant to a provision of the parties' Separation and Property Settlement Agreement (Agreement), which had been incorporated but not merged into their judgment of divorce. According to defendant, the provision created an employment relationship, permitting defendant to terminate the payments for good cause. We agree.

The consultation fee provision is found in the “Support” section of the Agreement and is entitled, “Additional Support.” According to the terms of the provision, if defendant's maintenance obligation to plaintiff terminates because of, inter alia, her remarriage, defendant will cause his business “to employ [plaintiff] as a consultant” for a certain weekly salary. The terms of the provision further provide that such “employment” shall continue until defendant's child support obligations under the Agreement terminate. Although the Agreement does not require plaintiff “to work any particular number of hours,” it requires her to “be available at reasonable times and from time to time to consult, as needed by [defendant], with respect to [his] various business interests.”

After plaintiff opened a competing business, defendant moved by order to show cause, inter alia, to terminate the consultation fees on the ground that plaintiff, as his employee, had breached her duty of loyalty. Supreme Court denied the motion, concluding in relevant part that “the employment provision is not a contract for employment, but rather ... is a support provision which allow[ed] the defendant's business to make payments to plaintiff instead of the defendant himself.” We conclude, however, that the provision constitutes an employment contract, thereby permitting defendant to terminate the payments upon plaintiff's breach of her duty of loyalty to him as her employer (see Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 295, 392 N.Y.S.2d 409, 360 N.E.2d 1091 ), and we therefore reverse.

It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce “is a contract subject to the principles of contract construction and interpretation” (Matter of Meccico v. Meccico, 76 N.Y.2d 822, 823–824, 559 N.Y.S.2d 974, 559 N.E.2d 668, rearg. denied 76 N.Y.2d 889, 561 N.Y.S.2d 551, 562 N.E.2d 876 ; see Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 ; Gurbacki v. Gurbacki, 270 A.D.2d 807, 807, 708 N.Y.S.2d 761 ), and “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 ; see Thompson v. McQueeney, 56 A.D.3d 1254, 1257, 868 N.Y.S.2d 443 ). By entering into the Agreement, defendant agreed to employ plaintiff in the event his maintenance obligation terminated during the period of time in which he was still obligated to pay child support. Inasmuch as the language of the Agreement is clear and unambiguous on its face, “the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence” (Rainbow, 72 N.Y.2d at 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 ; see Von Buren v. Von Buren, 252 A.D.2d 950, 950, 675 N.Y.S.2d 739 ).

While we agree with plaintiff and the court that the clear and unambiguous intent of the...