Culhane v. Culhane, 78-247

Citation402 A.2d 490,119 N.H. 389
Decision Date23 May 1979
Docket NumberNo. 78-247,78-247
PartiesSarah H. CULHANE v. Robert E. CULHANE.
CourtSupreme Court of New Hampshire

Stebbins & Bradley, P.A., Hanover (John S. Stebbins, Hanover, orally), for plaintiff.

Robert R. Howard III, Henniker (James D. Gleason, Henniker, orally), for defendant.

LAMPRON, Chief Justice.

This is an action in assumpsit by the plaintiff, Sarah H. Culhane, against the defendant, Robert E. Culhane. The plaintiff is seeking recovery of money due her pursuant to a written separation agreement executed by the parties on June 4, 1969, in Rochester, New York. The matter was submitted on an agreed statement of facts. The Trial Court, (Flynn, J.), found that the agreement was enforceable and awarded damages of $19,169.05. The defendant excepted to the findings and rulings and a reserved case was transferred. We overrule defendant's exceptions.

The parties were married on October 9, 1954, in the State of New York. Since 1963, the parties have lived separate and apart, and in 1969 they signed a written separation agreement "in conjunction with their oral understanding to obtain a divorce." The essential terms of the separation agreement are that the defendant pay the plaintiff forty-five dollars a week for support, maintenance, and education of the children until they reach the age of twenty-one; and that he pay the plaintiff forty dollars per week for her support. The separation agreement expressly stated that it was to remain in "full force and effect subsequent to any (divorce) decree." The defendant obtained a divorce in Massachusetts in 1972. From the date the separation agreement was entered into until the day the action was commenced, the defendant has paid the plaintiff $18,065.75. The parties have stipulated that if the provisions of the separation had remained in full force from 1969 until the date of this action the amount owed would be $37,235.00. Consequently, the amount in dispute is $19,169.05.

After the plaintiff brought a number of support actions, she commenced this action in assumpsit alleging a breach of the 1969 separation agreement itself. The parties agree that the State of New York, the place where the separation agreement was entered into, has the most "substantial connection" to the contract, and agree that the laws of that State should govern the contract's validity and performance. See Narins v. Narins, 116 N.H. 200, 202, 356 A.2d 665, 666 (1976). The pertinent New York law reads in full:

A husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife or to relieve the wife of liability to support her husband provided that she is possessed of sufficient means and he is incapable of supporting himself and is or is likely to become a public charge.

An agreement, heretofore or hereafter made between a husband and wife, shall not be considered a contract to alter or dissolve the marriage Unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds for divorce.

N.Y. General Obligations Law § 5-311 (McKinney) (1978) (emphasis added).

The defendant contends that the word "express" embraces either written or oral agreements, and that the oral understanding to obtain a divorce therefore voids the separation agreement in its entirety.

The plaintiff, on the other hand, argues that the word "express" was intended to include only those terms actually written into the agreement. The courts of New York have interpreted this provision to require that "an express recital of consideration to procure a divorce (must be) within the four corners of the agreement" before a separation agreement will be invalidated. Collins v. Johnson, 72 Misc.2d 1034, 341 N.Y.S.2d 214, 216 Aff'd, 75 Misc.2d 489, 348 N.Y.S.2d 136 (1973). An "alleged 'collateral oral agreement', even if made, is insufficient to invalidate (a) separation agreement." Alexandre v. Davis, 90 Misc.2d 368, 371, 394 N.Y.S.2d 757, 759 (1976). Under New York law the separation agreement is valid and enforceable. Similarly, there is no public policy in this State that would compel this court not to enforce this agreement. Narins v. Narins, 116 N.H. 200, 356 A.2d 665 (1976). The trial court properly ruled that this is "a legally surviving enforceable contract."

The defendant next argues that the plaintiff's obligation to obtain the divorce was consideration for his signing the separation agreement. The plaintiff's failure to pursue a divorce to completion, according to the defendant, renders the consideration inadequate, and voids the agreement. Every separation agreement "requires consideration to support it." 1A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 7, at 7-2 (1978). "(W)here mutual promises are made, and the promises impose legal liabilities on the respective parties, the promises of one of them furnish consideration for the promises of the other." Id.; see Herndon v. Herndon, 227 Ga. 781, 183 S.E.2d 386 (1971). In the present case, both parties bargained for complete personal and economic freedom from one another, thus creating mutual promises. See In re Estate of Ratony, 443 Pa. 454, 458, 277 A.2d 791, 793 (1971). Therefore we uphold the trial court's finding that the separation agreement is valid.

The defendant finally argues that the plaintiff's cause of action should not prevail because of the doctrine of full faith and credit, and the bars of res judicata and collateral estoppel. The chronology of events from 1969, when the separation agreement was signed, until the present cause of action is as follows. In 1970, the plaintiff filed a petition for support against the defendant in the Family Court of New York. This petition was transferred under the Uniform Reciprocal Enforcement of Support Act to the Municipal Court of Boston. The Municipal Court ordered the defendant to pay $130.00 on the fourth and twentieth day of each month to plaintiff for the support of the two older children. In 1972, the defendant obtained a divorce in the Commonwealth of Massachusetts. The divorce decree required the defendant to pay the plaintiff $70.00 a week for child support. Thereafter, in 1974, the defendant filed a petition to modify the divorce decree in the Massachusetts Probate Court. He alleged that one of his children had reached the age of eighteen, and, because she was no longer a minor, the terms of the decree should be reduced. Consequently, the Massachusetts decree was modified on January 9, 1975, and defendant's child support obligation was reduced to only $40.00 per week.

In 1974, the plaintiff brought the present action in assumpsit alleging that the defendant had not complied with the terms of the separation agreement. Finally on January 29, 1974, the plaintiff brought another support action in New York. This action was transferred under the Uniform Reciprocal Enforcement of Support Act to the Hillsborough County Superior Court. The superior...

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4 cases
  • Griffin v. Avery, 80-086
    • United States
    • Supreme Court of New Hampshire
    • 3 Diciembre 1980
    ...since the time of the support decree he had a right to petition for modification of the order under RSA 458:32. Culhane v. Culhane, 119 N.H. 389, 394, 402 A.2d 490, 493 (1979); McRae v. McRae, 115 N.H. 353, 354, 341 A.2d 762, 763 (1975). He had no right to determine on his own that support ......
  • In the Matter of Anthony J. Laura And Ericka P. Scott., 2010–183.
    • United States
    • Supreme Court of New Hampshire
    • 22 Diciembre 2010
    ...v. Cavanaugh, 1 Conn.App. 138, 468 A.2d 1242, 1244 (1984) (“[A] support order can only be modified by the court.”); Culhane v. Culhane, 119 N.H. 389, 394, 402 A.2d 490 (1979) (“orders for child support are modifiable by a court”). Additionally, RSA 458–C:5 requires the trial court to consid......
  • Sperl v. Sperl, 79-118
    • United States
    • Supreme Court of New Hampshire
    • 14 Noviembre 1979
    ...must present an authenticated copy of the judgment. See Moore v. Moore, 96 N.H. 130, 71 A.2d 409 (1950). But see Culhane v. Culhane, 119 N.H. ---, 402 A.2d 490 (1979). In this case, however, the decree was before the court pursuant to the defendant's motion to register. It is settled law th......
  • Brenda H., In re
    • United States
    • Supreme Court of New Hampshire
    • 23 Mayo 1979

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