Birnbaum v. Birnbaum

• Decision Date: 05 May 1972
• Parties: Mildred BIRNBAUM, Plaintiff, v. Uri BIRNBAUM, Defendant.
• Court: New York City Court

Page 890

333 N.Y.S.2d 890

70 Misc.2d 462

Mildred BIRNBAUM, Plaintiff, v. Uri BIRNBAUM, Defendant.

Civil Court of City of New York, Queens County.

May 5, 1972.

Aaron Weitz, New York City, for plaintiff.

Karpatkin, Ohrenstein & Karpatkin, New York City, by Rhoda H. Karpatkin, New York City, of counsel, for defendant.

SEYMOUR BOYERS, Justice.

In this action, plaintiff seeks to recover unpaid alimony under a separation agreement entered into March 12, 1969 between herself and the defendant. The marriage was subsequently terminated by a Mexican divorce obtained by plaintiff on or about March 28, 1969. The separation agreement was not incorporated into the Mexican divorce decree.

The separation agreement provided, among other things, that the defendant would pay the plaintiff $85.00 per week as alimony during the parties' lifetime and until the remarriage of the plaintiff, and that plaintiff was to have custody of the three minor children of the marriage, Jonathon (age 20), Avia (age 18), and Dorit (age 13). It is conceded that since October 15, 1970, the defendant has failed to pay the plaintiff the $85.00 weekly alimony due under the terms of Paragraph 5 of the agreement. The total arrears, as of February 4, 1972, amount to $5,780.00.

Plaintiff concedes that she has been 'habitually living' with one Henry Rosenberg, a man to whom she is not married and that the parties three children reside with plaintiff and Mr. Rosenberg, and that the defendant has been paying for the support of the three children.

The defendant testified at the trial that he stopped paying alimony in October 1970 upon discovery that Mr. Rosenberg had moved into the house in which his ex-wife and children resided. It was defendant's further testimony that plaintiff failed to consult with him, and that they had no conversations concerning Mr. Rosenberg moving into the house occupied by plaintiff and the children.

The defendant interposed an answer which, inter alia, offers four individual affirmative defenses: (1) Breach of Paragraph 19 of the agreement, (2) Fraudulent inducement based on alleged oral representations of the plaintiff, (3) Fraudulent inducement based on alleged misrepresentation by plaintiff as to the fairness of the support provisions for the children contained in the agreement, and (4) Plaintiff is habitually living with one Henry Rosenberg, to whom she is not married, and allegedly holds herself out as Mrs. Rosenberg. That Mr. Rosenberg is supporting the plaintiff and that the provisions of the agreement between the parties providing for the payment of alimony are unconscionable and not enforceable.

Defendant, at the trial, withdrew the third affirmative defense and counterclaim and moved for leave to amend the second defense and counterclaim by adding to Paragraph '6' the allegation that plaintiff made to defendant the representations contained in Paragraph '19' of the separation agreement, and by adding to Paragraph '8' that it was plaintiff's intention not to consult with defendant concerning Mr. Rosenberg's moving into the home occupied by plaintiff and the children and that it was not plaintiff's prime concern that the children grow up properly. The motion was granted.

Defendant argues that the party who has breached a material term of a contract cannot recover payments due under that agreement. This well established doctrine, it is argued further, applies as fully to separation agreements as to any other kind of agreement. Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; Blumberg v. Blumberg, Co.Ct., 117 N.Y.S.2d 906, affirmed 280 App.Div. 986, 117 N.Y.S.2d 473; Rosenblatt v. Birnbaum, 16 N.Y.2d 212, 264 N.Y.S.2d 521, 212 N.E.2d 37.

The plaintiff, on the other hand, argues that a Court may not modify or change a private contract, such as a separation agreement, for to do so is to impair the contract rights of the parties. Stillman v. Stillman, 20 A.D.2d 723, 247 N.Y.S.2d 569. In urging her argument, plaintiff cites Nichols v. Nichols, 306 N.Y. 490, 119 N.E.2d 351, wherein the Court of Appeals stated:

]The first and best rule of construction of every contract, and the only rule we need here, is that, when the terms of a written contract are clear and unambiguous, the intent of the parties must be found therein . . . The applicability, to separation agreements, of that fundamental rule, has been affirmed by this court on several occasions. Galusha v. Galusha, 116 N.Y. 635, 646, 22 N.E. 1114, 1117, 6 L.R.A. 487; Stoddard v. Stoddard, 227 N.Y. 13, 124 N.E. 91; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Schmelzel v. Schmelzel, 287 N.Y. 21, 38 N.E.2d 114.' 306 N.Y. at 496, 119 N.E.2d at 353.

Paragraph '19' of the said separation agreement provides in full:

'The husband and wife agree that they will consult with each other as the occasion may require concerning the secular and religious education of the children and also in connection with any and all problems concerning the health, education and general welfare of the children, it being the prime concern of the parties that the children grow up properly.'

Defendant contends that plaintiff breached Paragraph '19' by failing to consult with him concerning Mr. Rosenberg moving into the home occupied by plaintiff and the parties' children. The defendant further alleges that 'even if the children had suffered little or no physical or emotional trauma as a result of the married father of their friends moving in to live with their mother and share her bedroom, such an action, by its very nature, so flaunted accepted morality, so changed the children's relationship with their mother and required them to experience a new relationship with her paramour, as to constitute problems concerning the health . . . and general welfare specified in Paragraph '19'.'

It has long been the rule that the burden of establishing an affirmative defense rests upon the party asserting such defense, Conner v. Keese, 105 N.Y. 643, 11 N.E. 516; Anderson v. Material Co-ordinating Agency, Sup., 63 N.Y.S.2d 324; and the burden must be met by a fair preponderance of the evidence. Parker v. Culler Furniture Co., 278 App.Div. 135, 103 N.Y.S.2d 710.

Plaintiff conceded at the trial that she did not consult with defendant prior to Mr. Rosenberg moving into the household. It was her position that no such consultation was ever intended by Paragraph '19' or by any other clause in the agreement.

To buttress plaintiff's position Paragraph '1' of the agreement reads in part: 'The husband and wife shall continue to live separate and apart from each other, and each shall be free from interference, authority and control by the other, as fully as if he or she were sole and unmarried. . . .' Paragraph '2' of the separation agreement reads in part: 'Neither of the parties shall interfere with the other in his or her respective liberty of action or conduct, and each agrees that the other may at any and all times reside and be in such place as he or she may choose. . . .'.

Since def...