Baumann v. Goldstein

• Decision Date: 15 June 1960
• Parties: Sybil BAUMANN, Plaintiff, v. Joseph GOLDSTEIN, Defendant.
• Court: New York City Municipal Court

Page 575

201 N.Y.S.2d 575

Sybil BAUMANN, Plaintiff, v. Joseph GOLDSTEIN, Defendant.

Municipal Court of City of New York, Borough of Bronx,

Second District.

June 15, 1960.

Daniel V. Sullivan, New York City, for plaintiff.

Deutsch & Zucker, New York City, for defendant.

MARIO A. PROCACCINO, Justice.

This is a motion to strike the answer of the defendant and for summary judgment in favor of the plaintiff for the relief demanded in the complaint. The action is brought to recover the sum of $1,000, allegedly due from the defendant for arrears of support of two adopted children of the parties, said support being at the rate of $50 per week in the aggregate, pursuant to the terms of a written separation agreement.

The parties were married on August 7, 1949, and on July 26, 1954 they adopted the two children, who are twins and now six years of age. All resided together until on or about September 9, 1957, at which time the plaintiff and defendant separated. On that day the parties entered into a separation agreement which is the subject of this lawsuit.

Under the terms of the separation agreement, which was to survive any judgment or decree of divorce, custody of the children was given to the plaintiff, to maintain, educate and support them, and be responsible for their upbringing. The defendant was given rights of visitation on the days and times set forth in the agreement.

On November 18, 1957 the plaintiff obtained a decree of divorce from the defendant in the State of Alabama and thereafter was remarried. The defendant continued paying the $50 per week for the children's support until November 24, 1959, but since then has refused to pay, alleging breach of the separation agreement by the plaintiff and refusal of his visitation rights.

Plaintiff alleges that she has fully performed all the terms and conditions of the agreement, that she has accorded to the defendant every right of visitation set forth in the agreement and has not in any way curtailed the defendant's rights. The defendant, on the other hand, not only denies and disputes this, but specifically alleges many instances in which he was deprived of his visitation and other rights.

The sole question to be determined on this motion is one of law, and that is: whether the payments to be made for the support of the children pursuant to the separation agreement are conditional upon defendant's rights of visitation. If the are conditional, this motion must be denied, because triable issues of fact would be presented as to whether plaintiff did in fact deny defendant's rights of visitation and otherwise breach the agreement. If the payments are absolute and unconditional, judgment must be granted for the plaintiff, and the defendant's remedy would be in another forum.

The law is well settled that a wife's violation of visition provisions in a separation agreement precludes her from maintaining against the husband an action to recover unpaid instalments of support stipulated under such agreement. Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; Borax v. Borax, 4 N.Y.2d 113, 172 N.Y.S.2d 805; Muth v. Wuest, 76 App.Div. 332, 78 N.Y.S. 431; Magrill v. Magrill, 16 Misc.2d 896, at pages 901-902, 184 N.Y.S.2d 516, at pages 521-523; Matter of Noel's Estate, 173 Misc. 844, 19 N.Y.S.2d 370; Richards v. Richards, 5 Misc.2d 46, 157 N.Y.S.2d 874; Schwartz v. Spergel, Mun.Ct.New York, 90 N.Y.S.2d 439, 441; Matter of Schwartz, 279 App.Div. 1090, 113 N.Y.S.2d 455; Mackay v. Mackay, 205 Misc. 470, 473, 113 N.Y.S.2d 199, 202; and Almandares v. Almandares, 186 Misc. 667, 60 N.Y.S.2d 164.

This ruling is based upon a doctrine of the law of contracts concerning the mutual dependency of...