Burns v. Burns
| Decision Date | 26 May 2017 |
| Citation | 57 N.Y.S.3d 651,56 Misc.3d 864 |
| Parties | Eleanor M. BURNS, Plaintiff, v. Andrew McIntosh BURNS, Defendant. |
| Court | New York Supreme Court |
56 Misc.3d 864
57 N.Y.S.3d 651
Eleanor M. BURNS, Plaintiff,
v.
Andrew McIntosh BURNS, Defendant.
Supreme Court, Monroe County, New York.
May 26, 2017.
Francis C. Affronti, Esq., Rochester, Attorney for Plaintiff.
Andrew M. Burns, Esq., Rochester, pro se.
RICHARD A. DOLLINGER, J.
Is old law still good law? In that regard, can a contractual obligation to pay maintenance be enforced if the former wife (receiving the maintenance) has now remarried and the parties' "opting out" agreement does not contain a cutoff upon remarriage?
The answer to these inquiries carries the court into an interaction between negotiated contractual rights in "opting out" agreements and the dictates of the seldom-cited, and all-but ignored, first sentence in Section 248 of the Domestic Relations Law, mandating that courts must not enforce any orders which require a spouse to pay maintenance after the payee remarries, and Section 236 of the Domestic Relations Law which provides for the termination of any order of maintenance "upon the death of either party or upon the recipient's valid or invalid marriage." DRL § 236[B][1][a] ; [6][c] ).
In this instance, a couple negotiated a separation agreement which provided for payment of maintenance by the husband on a sliding scale. As his children aged out of child support, his contribution for maintenance also declined. The maintenance was to be paid until November 2020. The agreement did not include any of the usual termination events—death of either spouse or remarriage of the recipient. The agreement uses the word "rehabilitative" as an adjective to the word "maintenance."1 With this agreement as a backdrop, the wife remarried in December 2015. In April 2016, the husband stopped paying maintenance. In response, the former wife filed an order to show cause, seeking to hold the husband in contempt, and a money judgment for the unpaid maintenance and attorney fees.
The husband's argument is simple: in the absence of an agreement, maintenance ordered in a judgment of divorce terminates upon the wife's remarriage. The wife argues that the agreement at issue here is an "opting-out" agreement, and therefore the couple chose to define maintenance obligations outside the ambit of the Domestic Relations Law. Under these circumstances, the wife argues that when an "opting out" agreement is silent on the cut-off of maintenance, the court can delve into the parties' intentions to determine whether there was an implicit promise that maintenance would continue until the end of the term set forth in the agreement.
The husband relies on statute to rebut the wife's claims. The first sentence of Section 248 of the Domestic Relations Law provides:
Where an action for divorce or for annulment or for a declaration of the nullity of a void marriage is brought by a spouse, and a final judgment of divorce or a final judgment annulling the marriage or declaring its nullity has been rendered, the court, by order upon the application of the payor on notice, and on proof of the marriage of the payee after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the payee.
DRL § 248. In addition, the husband notes that the "termination upon remarriage" language is echoed twice in Section 236, Part B of the same statute. DRL § 236, B(1)(a) states that an award of maintenance shall terminate "upon the payee's valid or invalid marriage." Later, in the same section, the Legislature wrote the same command: "post-divorce maintenance shall terminate upon the payee's ... marriage." DRL § 236, Part B, (6)(f)(3).
The wife suggests that the Court of Appeals decision in Cohen v. Cronin, 39 N.Y.2d 42, 382 N.Y.S.2d 724, 346 N.E.2d 524 (1976), is the backdrop for a continuing maintenance obligation. In that case, the question was whether maintenance should be paid after the death of the payor. The court held that the notion that payments of maintenance after death of the payor was a "well-accepted proposition," citing Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236 (1905). In the latter case, the Court of Appeals, more than century ago, held that the parties could enter into an agreement that could bind the husband's estate. But, the court in Wilson v. Hinman carefully added, " an agreement of that character would in no way contravene public policy, and the performance of it would, doubtless, be enforceable by the courts." Id. at 414, 75 N.E. 236. In short, at the dawn of the 10th century, the Court of Appeals drew a line in the marital sand: a couple could extend maintenance beyond the "well-accepted proposition" of death, but not to " contravene public policy." Id. at 414, 75 N.E. 236. Applying that principle 70 years later in Cohen v. Cronin, the Court of Appeals held that the express language in the agreement—"until [the wife] shall remarry or expire" without any limiting language—obligated the husband's estate to make maintenance payments. The court in Cohen v. Cronin applied the "well-established proposition" that maintenance can be paid after death of the payor. There was no public policy barring the payment of maintenance after the husband's death, and therefore, the couple could agree to extend maintenance beyond that time.
The wife's citation to Cohen v. Cronin ignores the intervening Court of Appeals cases that did invoke a "public policy" exception to payment of maintenance. In the wake of Wilson v. Hinman, the Court of Appeals waited to be asked whether some public policy impacted the obligation to pay maintenance. It did not have to wait long or look far. Fourteen years later, in Schley v. Andrews, 225 N.Y. 110, 121 N.E. 812 (1919), the court highlighted Section 1771 of the Code of Civil Procedure as meeting the public policy test:
If the defendant had obtained a divorce in this state, and the judgment had awarded her $200 per month alimony, and she had again married, as she has here done, and the plaintiff had made a motion to be relieved from such payment, the court would have had to grant the motion. The statute so provides (Code Civil Procedure, sec. 1771), and while this statute has no direct bearing on the question being considered, it indicates by its enactment a legislative intent that as a matter of public policy a wife who has a husband with whom she is living should be supported by him and not by one from whom she has been divorced.
Id. at 114, 121 N.E. 812. During the next 13 years, lower courts agreed. In Dumproff v. Dumproff, 138 Misc. 298, 244 N.Y.S. 597 (Sup.Ct. New York Cty.1930), the court reaffirmed the underlying public policy inherent in the statute:
Upon her remarriage I hold that instanti the obligation to compel provision for her maintenance is shifted from the shoulders of her former spouse to him
who assumes all the privileges, and, therefore, is ordinately a full measure of the duties incident to the marital state. This is as it should be. For otherwise, in a possible case ad interim the time of such remarriage and the application by the former husband for a modification of the final decree, the alimony paid by such former husband would not only lighten the duty of the second spouse in respect to the support of his wife, but might even be reflected, if the wife were a mere conduit, in the enhanced financial circumstances of such second husband. There could be no justice in such proposition.
Id. at 299, 244 N.Y.S. 597. In 1932, the Court of Appeals re-affirmed the public policy incorporated into Section 1159 of the Civil Practice Act when applied to a separation agreement incorporated into a judgment of divorce, and struck down the decretal paragraph in the judgment requiring maintenance after remarriage. Severance v. Severance, 235 App.Div. 799, 255 N.Y.S. 998 (2nd Dept.1932), aff'd 260 N.Y. 432, 183 N.E. 909 (1933). The court stated that Section 1159 was "mandatory" and a cutoff of maintenance was required upon "the conceded fact that the plaintiff had remarried" even if the obligation was set forth in an agreement between the husband and wife. Four years later the court revisited the question, this time under the revised Section 1179 of the Civil Practice Act and the precursor of Section 248 of the Domestic Relations Law.2 The Court of Appeals, in Kirkbride v. VanNote, 275 N.Y. 244, 9 N.E.2d 852 (1937), quoted Schley v. Andrews, 225 N.Y. 110, 114, 121 N.E. 812 and specifically directed:
The provision of the Civil Practice Act is mandatory. Where a former wife has remarried and an application is made for modification of the judgment with respect to the direction of payment of money for the support of the former wife, the court "must modify," and cannot in its discretion refuse to do so ... The law recognizes the unfairness of
requiring a husband to pay alimony for a period during which his former wife is married to another. In view of the mandatory character of this provision and the public policy behind it, there can be no doubt that the right to apply for modification is not personal to the husband, and the modification is not limited to the time subsequent to the application. It applies nunc pro tunc as of the time of the...
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