Berman v. Berman

• Decision Date: 14 February 1980
• Citation: 424 N.Y.S.2d 899,72 A.D.2d 425
• Parties: Eli BERMAN, Plaintiff-Appellant-Respondent, v. Sheva BERMAN, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 899

424 N.Y.S.2d 899

72 A.D.2d 425

Eli BERMAN, Plaintiff-Appellant-Respondent, v. Sheva BERMAN, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 14, 1980.

J. Anthony Burton, New York City, of counsel (Bobrow, Greenapple, Burton, Distler & Midler, New York City, attorneys), for plaintiff-appellant-respondent.

Roy M. Cohn, New York City, of counsel (Howard F. Husum, New York City, with him on the briefs; Saxe, Bacon & Bolan, P. C., New York City, attorneys), for defendant-respondent-appellant.

Before FEIN, J. P., and BLOOM, SILVERMAN, ROSS and YESAWICH, JJ.

FEIN, Justice Presiding.

The parties separated in 1975, pursuant to agreement, after thirty years of marriage. They have lived separate and apart since then. Plaintiff husband appeals from denial of summary judgment converting the separation agreement to a divorce under Domestic Relations Law § 170(6). Defendant wife cross-appeals from denial of her motion to renew argument on the granting of plaintiff's motion to dismiss her counterclaim which sought to set aside the separation agreement as inequitable and fraudulently induced.

We are all agreed that the cross-appeal lacks merit. Defendant was represented by competent counsel during the extended negotiations leading up to execution of the lengthy separation agreement. Moreover, the very subject matter of the cross-appeal has already been litigated in plaintiff's favor in collateral proceedings, and thus is inappropriate for consideration here.

The issue which divides the court is whether the husband has substantially complied with the terms of the separation agreement, so as to warrant summary conversion to a divorce. The separation agreement called for monetary support of defendant and the two children of the marriage in the form of alimony and child support, plus the major portion of expenses of continuing psychiatric treatment of one of the children, the major portion of the other child's orthodontia and related dental expenses, and all college tuition and related expenses for the children.

The alimony and child support were to be based on a percentage of plaintiff's annual income. Defendant maintains plaintiff has so disguised his real income as to deny her rightful entitlement under the separation agreement formula for alimony and child support. In addition, defendant alleges plaintiff has refused to meet his other financial obligations under the agreement with regard to college expenses and dental bills, as well as failing to continue payment for major medical insurance coverage, life insurance, and various other bills and expenses as promised. As a result, defendant maintains she has been short-changed some $92,000 which, she now asserts, amounts to substantial noncompliance with the "heart and essence" of the separation agreement.

Nowhere in his affidavit in reply to defendant's opposition to the motion for summary judgment did plaintiff dispute the factual allegations of breach of the financial conditions of the agreement. Rather, plaintiff emphasized, as he does on this appeal, that there has been compliance with what he regards as the only important condition of the agreement, as far as conversion divorce is concerned, separation for more than one year.

The dissent cites Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849, which gives primacy to the requirement of separation in qualifying for a conversion divorce. Indeed, that case does stand for the proposition that public policy will encourage the dissolution of stale marriages. However, the statute clearly requires "substantial compliance" with all of the terms and conditions of the agreement in order to obtain conversion. Christian effects no alteration of that requirement. The Christian court plainly acknowledged the need to prove "substantial compliance", something more than mere living separate and apart. "Once there has been a separation for one or more years (L.1970, ch. 835, § 2) supported by the prescribed separation agreement with which there has been substantial compliance, the statute suggests no condition or restriction on the right of either party to commence the action * * *." (Christian v. Christian, 42 N.Y.2d at 69, 396 N.Y.S.2d at 822, 365 N.E.2d at 853). In Christian, unlike our case, there was no issue of substantial compliance. No alimony was involved and, so far as appears, child support was being provided. The sole issue was whether the property division provisions had been fraudulently induced and were thus null and void, and if so, whether such invalidity infected the entire agreement. The case does not pass on "substantial compliance" and its meaning and effect.

The mere allegation and proof that parties have been living separate and apart for more than one year after entering into a separation agreement does not automatically entitle one party, who has not otherwise substantially complied with the terms and conditions of the agreement, to a conversion divorce (Milteer v. Milteer, 43 A.D.2d 741, 350 N.Y.S.2d 928). The undenied allegations of defendant here go not to mere insignificant provisions of the separation agreement, or occasional arrears in payments due (see Pierce v. Pierce, 50 A.D.2d 867, 376 N.Y.S.2d 624; Timmins v. Timmins, 50 A.D.2d 720, 375 N.Y.S.2d 71, lv. to app. den. 38 N.Y.2d 708, 382 N.Y.S.2d 1027, 345 N.E.2d 604); rather, they are aimed at substantial noncompliance and nonperformance of major mandatory decretal duties imposed upon plaintiff as conditions of the separation (Failla v. Failla, 81 Misc.2d 959, 367 N.Y.S.2d 935). It is with these major provisions, such as alimony and child support, that the statute requires substantial compliance for at least one year (Roth v. Roth, 74 Misc.2d 135, 344 N.Y.S.2d 739; cf. Pierce v. Pierce, supra, and Rubin v. Rubin, 35 A.D.2d 460, 317 N.Y.S.2d 571).

The separation agreement here contained a severability clause, which the Court of Appeals specifically approved of in Christian, supra. But by the terms of this clause, as in Christian, severability applied only to such "provision(s) of this agreement . . . held to be invalid or unenforceable". Such is not the case here. We are faced not with a situation of invalid or unenforceable provisions, but rather with unperformed terms and conditions whose validity has never been challenged...