Christian v. Christian

Decision Date09 June 1977
Citation396 N.Y.S.2d 817,365 N.E.2d 849,42 N.Y.2d 63
Parties, 365 N.E.2d 849 Henrietta G. CHRISTIAN, Respondent, v. William L. CHRISTIAN, Appellant.
CourtNew York Court of Appeals Court of Appeals

Stephen W. Schlissel, Brooklyn, and Charles S. Sherman, Glen Cove, for appellant.

George R. Hoffman, Babylon, for respondent.

COOKE, Judge.

Marriage being a status with which the State is deeply concerned, separation agreements subjected to attack are tested carefully. "A court of equity does not limits inquiry to the ascertainment of the fact whether what had taken place would, as between other persons, have constituted a contract, and give relief, as a matter of course, if a formal contract be established, but it further inquires whether the contract (between husband and wife) was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it" (Hendric v. Isaacs, 117 N.Y. 411, 417, 22 N.E. 1029, 1030; Hungerford v. Hungerford, 161 N.Y. 550, 553, 56 N.E. 117, 118).

We review here the grant by the Appellate Division of a divorce to one spouse, because of a living separate and apart by the marital parties pursuant to a separation agreement as provided by statute (Domestic Relations Law, § 170, subd. (6)), and, more particularly, the declaration that a portion of the agreement, which stipulated that there be an equal division of certain securities, was null and void.

Henrietta Christian and William Christian were married in 1958. Five years later a daughter was born and, about two years thereafter, a son. The husband, the holder of a degree in mechanical engineering, was the vice-president in charge of manufacturing for a metal fabricating concern. The wife in time had acquired a master's degree in social work and held a position at a school for girls. Unfortunately, differences arose and, following a bit of marriage counseling, they entered into a separation agreement on January 15, 1972. At that time, the husband's employment earnings were $40,000 a year and the wife's $10,000. In addition, both also had separate unearned income.

The agreement contained a section numbered "6", entitled "Division of Property". In it, provisions were made with reference to such items as the family residence, automobiles, household furnishings, hospital, medical and dental care policies and life insurance. The section concluded with the paragraph: "During the period of the separation assets held in individual name shall continue to be so held and all joint assets shall continue to be held jointly. In the event that the parties are divorced all assets held by the parties in their joint and individual names on January 1, 1972, a list of which properties is appended hereto as Schedule A, shall be divided equally between the parties so that the Husband shall take one-half of all assets held by the Wife in her individual name on January 1, 1972 and she shall take one-half of all assets held by the Husband on that date. It is the intent of the parties that so far as economic circumstances of the parties permit the money which each receives from the other shall be preserved and left by Will to the two children, Christine and Keith." No mention was made of support of the wife, but the husband covenanted to pay $100 a week for the children.

This action was commenced in August of 1972 by the plaintiff wife for divorce on the ground of cruel and inhuman treatment, pursuant to subdivision (1) of section 170 of the Domestic Relations Law. The defendant, in the following January, served an amended answer containing a counterclaim for divorce predicated on the living separate and apart by the parties since the execution of the separation agreement, a period in excess of one year, and the due performance by defendant of all of the agreement's terms and conditions. The answer also prayed that the separation agreement be incorporated but not merged in the judgment and for such other relief as would be just. For her reply, plaintiff denied the essential allegations of the counterclaim and asserted affirmative defenses to the effect that the agreement was procured as a result of fraud, misrepresentations and concealment, was the product of coercion and duress, was made without consideration and violated public policy.

During a nonjury trial, plaintiff's complaint was dismissed for failure to make out a prima facie case. Following full submission of proof, Supreme Court declared the separation agreement null and void for fraud, set it aside in its entirety, dismissed the husband's counterclaim, and ordered the parties to co-operate to effect a reconciliation and resumption of the marital relationship. The last paragraph of section "6" of the agreement was examined. Noting that the husband was aware that his stocks listed in the schedule were worth $200,000 while those of the wife had a value of $800,000 to $900,000, that the wife contended that she had no idea of the relative values of the securities, that the husband cleverly maneuvered the retention of the attorney who ostensibly represented the wife and drew the agreement, that neither party informed the attorney of the values of the stock being split, it was concluded that the husband's conduct in procuring the drafting of the agreement and in concealing from the attorney the details of the distribution of assets constituted such fraud as to vitiate the agreement completely.

The Appellate Division unanimously reversed, on the law and the facts, granted defendant husband's counterclaim for divorce and declared the last paragraph of provision "6" of the parties' agreement null and void. It was held that the record did not support Supreme Court's findings of fact to the effect that defendant was guilty of fraud or overreaching with regard to the formulation or signing of the agreement, that plaintiff failed to sustain her burden of proof as to her affirmative defense of fraud in the inducement. Insofar as the parties had lived separate and apart pursuant to the agreement, properly executed and filed, and adhered to its terms for more than a year, thus fulfilling the statutory requirements, defendant was held to be entitled to a decree of divorce. In the Appellate Division's view, the wife was not represented by an attorney acting solely in her interests and her knowledge of financial matters was not equal to that of her husband. In the light of these facts, the relative value of the listed securities to be divided and the high price plaintiff apparently was prevailed upon to pay for her husband's signature to the separation agreement, the last paragraph of provision "6" was held to be so unconscionable as to be unenforceable.

With the enactment of the Divorce Reform Law of 1966 (L.1966, ch. 254), New York abandoned its position as the only State in the union which regarded adultery as the sole ground for absolute divorce. Under a new section 170 of the Domestic Relations Law, an action for divorce may be maintained on any one of six grounds, including adultery, the scope of which was extended by definition (subd. (4)). Cruel and inhuman treatment, abandonment and imprisonment were joined as bases for the action (subds. (1), (2), (3)). Finally, under the last two subdivisions, two new grounds for absolute divorce were specified living apart pursuant to a separation decree or judgment and living separate and apart pursuant to a written separation agreement (subds. (5), (6)).

These last two bases have become known as the "no fault" grounds, since they were designed to make separation a ground for divorce, regardless of fault, as long as the authenticity of the separation is supported by a separation decree or agreement (see Foster & Freed, Matrimonial Law (rev. ed., 1973), p. 29). 1 "The decree (or agreement) is simply intended as evidence of the authenticity and reality of the separation" (Gleason v. Gleason, 26 N.Y.2d 28, 35, 308 N.Y.S.2d 347, 351, 256 N.E.2d 513, 516). This requirement as to a separation decree or agreement is peculiar to New York and reflects legislative concern over the fraud and collusion which historically infected divorce actions involving adultery. At the 1966 legislative session, the original broad proposal for a "living separate and apart" ground, as incorporated in the Wilson-Sutton Bill, at first rejected in the so-called " Leaders's Bill", was finally incorporated in the compromise bill, conditioned on the requirements that there be a formal and filed written agreement and that the party seeking to come within the embrace of such ground prove that "he or she has duly performed all the terms and conditions of such agreement" 2 (1 Foster & Freed, Law and the Family, pp. 264, 333, n. 9; p. 337; Foster & Freed, The Divorce Law Reform (1970), p. 22; see Littlejohns v. Littlejohns, 76 Misc.2d 82, 86, 349 N.Y.S.2d 462, 467, affd. on opn. at Trial Term 42 A.D.2d 957, 348 N.Y.S.2d 959).

Divorces provided for in subdivisions (5) and (6) are also referred to as "conversion" divorces in that they permit the conversion of a judicial separation decree or separation agreement into an absolute divorce decree. In Gleason, an action under subdivision (5), it was held that "the statute, as a whole, points (to) the construction that all that has to be proved is that there is some kind of formal document of separation * * * that the plaintiff has complied with its terms and that the parties have lived apart" pursuant to the document for the statutory period (p. 37).

It was the legislative intent to provide these nonfault grounds for divorce where marriages are dead, based on a recognition that it was morally and socially desirable, to society and to the parties to such a union, to enable them " 'to extricate themselves from a perpetual state of marital limbo' " (Gleason v. Gleason, 26 N.Y.2d 28, 35, 37, 308 N.Y.S.2d 347, 351, 352, 256 N.E.2d 513, 516, 517, supra ). The "vital and operative" fact, in subdivision (6) divorce cases, is...

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