Borax v. Borax
| Decision Date | 27 March 1958 |
| Citation | 149 N.E.2d 326,4 N.Y.2d 113,172 N.Y.S.2d 805 |
| Parties | , 149 N.E.2d 326 Ruth BORAX, Appellant, v. Herman BORAX, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Charles Rothenberg, New York City, for appellant.
Maurice Shorenstein and Ralph Stout, New York City, for respondent.
This appeal is from an order dismissing the complaint in a separation action on motion upon the ground that it is barred by a previous separation agreement between the parties. A valid and subsisting provision for support and maintenance in a separation agreement bars the maintenance of a separation action (Drane v. Drane, 207 App.Div. 217, 201 N.Y.S. 756; Benesch v. Benesch, 182 App.Div. 221, 169 N.Y.S. 561; Beebe v. Beebe, 174 App.Div. 408, 160 N.Y.S. 967; 9 Carmody on New York Practice, § 238, p. 386). The complaint anticipates and endeavors to avoid this basis for dismissal, by alleging that the separation agreement was broken by defendant husband by violating the covenant against molestation of plaintiff. He has paid all of the installments for her support. It is alleged that he molested her by obtaining a Mexican divorce without jurisdiction, purporting to marry another woman whom he held out publicly as his wife, and giving his name to her child. It is also alleged that he sent to her malicious written communications.
Special Term held that no molestation of plaintiff by defendant was alleged in the complaint or established by affidavits. The Appellate Division affirmed upon the ground that regardless of whether this husband molested his wife, a promise not to molest is an independent covenant in a separation agreement under the English case of Fearon v. Aylesford (14 Q. B. D. 792). In our view that determination was correct.
The usual form taken by molestation between separated spouses consists in an endeavor to compel the restoration of conjugal rights. The law favors resumption of marital relations even if the parties to the marriage are living in a state of separation, and clauses in separation agreements and decrees which provide for living separate and apart in the future are of doubtful validity (Landes v. Landes, 94 Misc. 486, 159 N.Y.S. 586, affirmed 172 App.Div. 758, 159 N.Y.S. 230; Lindey on Separation Agreements and Ante-Nuptial Contracts (Rev. ed., 1953), pp. 87-88; Aspinwall v. Aspinwall, 49 N.J.Eq. 302, 305, 24 A. 926; 2 Story on Equity Jurisprudence (14th ed.), § 1862; 2 Nelson on Divorce and Annulment (2d ed.), § 19.04). The tendency to treat promises to live separately as independent covenants has arisen from the circumstance that otherwise their invalidity might impair the maintenance provisions in separation agreements. Insofar as a covenant against molestation merely purports to prohibit importunities to resume the marital relationship, such a covenant may well be void, in which event it would have to be construed as an independent covenant unless it were to vitiate the entire separation agreement. Even assuming molestation to be a broader term covering other behavior between separated spouses, consistency requires that a covenant against all kinds of molestation should be treated as independent. Even where valid, covenants against molestation are similar historically to covenants to live separate and apart, and resemble them in structure and design in separation agreements. Lindey on Separation Agreements and Ante-Nuptial Contracts recognizes that covenants against molestation other than to compel restitution of conjugal rights may be valid, but treats such covenants as independent (Rev. ed., 1953, pp. 108-109). Such an interpretation is in accord with other authority (Stern v. Stern, 112 N.J.Eq. 8, 163 A. 149, affirmed 113 N.J.Eq. 185, 166 A. 89; Sabbarese v. Sabbarese, 104 N.J.Eq. 600, 146 A. 592, affirmed on opinion below 107 N.J.Eq. 184, 152 A. 920; Thomas v. Thomas, 104 N.J.Eq. 607, 146 A. 431; Hughes v. Burke, 167 Md. 472, 175 A. 335; Fearon v. Aylesford, supra).
Inasmuch as...
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