Cohen v. Cronin

• Decision Date: 26 February 1976
• Citation: 382 N.Y.S.2d 724,346 N.E.2d 524,39 N.Y.2d 42
• Parties: , 346 N.E.2d 524, 5 A.L.R.4th 1146 Helen S. COHEN, Appellant, v. Charles J. CRONIN, as Executor of Arthur Cohen, Deceased, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 724

382 N.Y.S.2d 724

39 N.Y.2d 42, 346 N.E.2d 524, 5

A.L.R.4th 1146

Helen S. COHEN, Appellant, v. Charles J. CRONIN, as Executor of Arthur Cohen, Deceased, Respondent.

Court of Appeals of New York.

Feb. 26, 1976.

William W. Esseks, Riverhead, for appellant.

Salvatore J. Nicosia, Farmingdale, for respondent.

JASEN, Judge.

The issue presented on this appeal is whether the provision in a separation agreement obligating the husband to make support payments to his wife survives his death and is binding on his estate.

Helen and Arthur Cohen were married in 1942 in New York City. They were married for nearly 30 years and had three children, all now fully grown. In March, 1972, the parties separated and began living apart from each other. On October 6, 1972, they entered into a separation agreement. The agreement provided that the husband 'shall pay to the wife on the first day of the month next ensuing the date of execution of this agreement by the parties hereto, the sum of $400.00 each month for the wife's separate maintenance and support until she shall remarry or expire.' The agreement required the husband to deliver to the wife a deed conveying title to the marital residence. The wife, however, was obligated to pay all costs and expenses incurred by virtue of her ownership of the home, including mortgage payments, real property taxes, insurance premiums and the cost of maintaining and repairing the house. All of the personal property contained in the house was to be retained by the wife. The husband agreed to pay the premiums arising from the wife's hospitalization and medical services insurance policy. The wife was to make the payments on her own in the event that she became employed. The agreement recited that in its negotiation and preparation, 'the parties have taken into consideration that the WIFE is not now employed and that she accepts the provisions herein made for her in full satisfaction for her support and maintenance'. The parties agreed to release each other from any claims not arising from the agreement and waived their respective rights to 'share' in the other's estate. The agreement contained the entire contract between the parties and was not to be incorporated in any future divorce decree.

Arthur Cohen died on November 26, 1972, less than two months after the execution of the separation agreement. Although he was endeavoring to obtain a Dominican divorce, the parties were still married and living apart, pursuant to the separation agreement, at the time of his death. While the deed to the marital home had been delivered to the wife, no support payments had been made. The wife sought to charge her husband's estate with the obligation to make the monthly payments provided for in the separation agreement. Upon rejection of her claim by the executor of the estate, she commenced this action. The executor's answer denied, on information and belief, only two paragraphs of the complaint; the paragraph alleging that the claim for the support payments was due and owing and the paragraph alleging that the action had been timely commenced. ^* The answer also contain a motion for summary judgment, predicated upon the nonexistence of any factual issues and the lack of legal merit to the plaintiff's cause of action. By way of response, the plaintiff moved for summary judgment in her favor. In support of his motion, the executor submitted an attorney's affirmation, and, later, a reply affirmation. The plaintiff produced an attorney's affidavit. However, none of these statements even so much as hinted at the existence of any factual issues. Rather, the papers merely argued the legal conclusions to be drawn from the written terms of the separation agreement.

Special Term granted summary judgment to the plaintiff and directed that the executor establish a reserve fund sufficient to cover the estate's obligation to make support payments. The Appellate Division modified the judgment by striking the grant of summary judgment and the direction to establish a reserve fund. The court concluded that the separation agreement presented an ambiguity which should be resolved at trial. Leave to appeal to our court was granted, the Appellate Division certifying a question as to the propriety of its order.

We start with the well-accepted proposition that a husband's obligation to support his wife terminates with the husband death. However, the husband might, by agreement, impose upon his estate a duty to make alimony or support payments after his death. (See e.g., Wilson v. Hinman,182 N.Y. 408, 412, 414, 75 N.E. 236, 238; Barnes v. Klug, 129 App.Div. 192, 195, 113 N.Y.S. 325, 328; Matter of Baratta, 199 Misc. 246, 102 N.Y.S.2d 766, affd. 279 App.Div. 992, 112 N.Y.S.2d 493.) In order to bind the estate, a separation agreement must either specifically provide for the continuation of payments or evince, from the terms of the agreement read as a whole, a clear intention that support payments continue, notwithstanding the husband's death. (Cooke v. Cooke, 2 A.D.2d 128, 133, 154 N.Y.S.2d 757, 762; Matter of Davis, 32 A.D.2d 667, 668, 300 N.Y.S.2d 783, 784; Matter of Howe, 15 Misc.2d 1044, 1046, 183 N.Y.S.2d 156, 158, affd. 8 A.D.2d 720,189 N.Y.S.2d 332; 16 N.Y.Jur., Domestic Relations, § 690, pp. 249--250; Ann., 75 A.L.R.2d 1085, 1086.) While explicit agreement by the parties is obviously much to be preferred, where such explicit agreement is lacking, the court must read the document as a whole in its total context and examine each of its provisions in order to ascertain the overriding intention of the parties. (Cooke v. Cooke, supra; Lepsch v. Lepsch, 275 App.Div. 412, 415, 90 N.Y.S.2d 157, 161; Matter of Stableford, 174 Misc. 284, 285, 20 N.Y.S.2d 615, 616; Matter of Junge, 125 Misc. 707, 709, 212 N.Y.S. 119, 120; 2 Foster & Freed, Law and the Family, § 28:61, pp. 469--470.) Since the burden of proof is by the claimant, the wife must establish, to the satisfaction of the court, that the parties actually intended to extend the obligation to make support payments beyond the husband's lifetime. (Lepsch v. Lepsch, supra; Matter of Porter, 208 Misc. 611, 612, 137 N.Y.S.2d 271, 272; Matter of Baratta, 199 Misc. 246, 248, 102 N.Y.S.2d 766, 768, affd. 279 App.Div. 992, 112 N.Y.S.2d 493, Supra; 16 N.Y.Jur., Domestic Relations, § 690, p. 251.)

From our analysis of the agreement, we conclude that the provision in the agreement for the support payments to the wife to continue 'until she shall remarry or expire', without any qualifying or limiting language, obligates the husband's estate to make the payments for the lifetime of the wife. Nowhere in the agreement is it suggested that payments are to be made during the joint lives of the parties or that the agreement would terminate upon death of either party. On the contrary, the agreement expressly states that termination of the payments of support would only occur where the wife has either remarried or died. The parties expressly noted that the wife was not employed and that the payments were to be made 'in full satisfaction for her support and maintenance'. It was clearly anticipated that the payments to the wife would be her sole source of income. It is significant that the wife, while given title to the marital home and its furnishings, was required to pay for its upkeep, although she had no income of her own. She was required to bear the cost of home maintenance ...