Callender v. Callender

• Decision Date: 28 October 1971
• Citation: 325 N.Y.S.2d 420,37 A.D.2d 360
• Parties: Gladys CALLENDER, Plaintiff-Respondent, v. Eugene S. CALLENDER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 420

325 N.Y.S.2d 420

37 A.D.2d 360

Gladys CALLENDER, Plaintiff-Respondent, v. Eugene S. CALLENDER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 28, 1971.

G. Kenneth Brown, New York City, for defendant-appellant.

Adrian A. Colley, New York City, of counsel (Burke & Burke, New York City, attorneys) for plaintiff-respondent.

Before STEVENS, P.J., and CAPOZZOLI, KUPFERMAN, MURPHY, and STEUER, JJ. STEVENS, Presiding Justice:

By leave of the Appellate Division defendant appeals from a judgment entered in Civil Court May 12, 1970 (Scott, J.) which judgment was unanimously affirmed by the Appellate Term May 17, 1971.

The parties were married October 7, 1950. One child was born of the union. The parties entered into a separation agreement dated July 10, 1962 in which, Inter alia, it was provided the defendant husband should pay a total sum of $180 per month, $90 each for the maintenance and support of the wife and child. The wife was given custody of the child and the right to live anywhere within the State of New York, with the husband to have the right of visitation at specified periods. It was provided, in the event a decree of divorce was obtained by either party, that the terms of the agreement should continue and not be affected thereby, and should not be merged in any such decree. The parties expressly agreed that no modification or waiver of any of the terms of the agreement should be valid unless in writing and executed with the same formality as the agreement. The husband obtained a bilateral Mexican decree of divorce dated July 28, 1962. Portions of the separation agreement were incorporated by reference, but it was specifically provided that such agreement was not merged in the decree.

Both parties complied fully with the terms of the separation agreement until July 1964, when plaintiff wife went to Nairobi, East Africa as an employee of the Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the U.S.A. Plaintiff took the child with her. Plaintiff returned to New York in August 1967, at which time defendant resumed payments as agreed, no payments having been made in the interval while plaintiff was abroad.

In this action plaintiff seeks to recover the sum of the omitted payments. The complaint contains two causes of action. The first cause is to recover for breach of the obligation to make payments as provided in the separation agreement. The second cause is based upon defendant's breach of that obligation pursuant to the Mexican divorce decree.

Defendant concedes that the payments claimed were not made. He pleads as an affirmative defense to both causes the residence of plaintiff without the State of New York in violation of his visitation rights as set forth in the separation agreement. Plaintiff urges that defendant was apprised of the proposed trip to Kenya, that there was discussion of the matter and that he raised no objection. It is not asserted that defendant consented orally or in writing. The Civil Court granted summary judgment to plaintiff on the second cause of action, which judgment was affirmed by the Appellate Term. We granted leave to defendant to appeal.

The question to be resolved is whether, under the facts here present, the provisions for support and visitation are dependent or independent. Or, to pose the issue differently, does plaintiff's violation of the visitation provision preclude recovery of unpaid support payments where the agreement containing such covenants was not merged in a later divorce decree.

The trial court properly refused to grant judgment on plaintiff's first cause of action based upon the obligations...