Culhane v. Culhane, No. 78-247

• Court: Supreme Court of New Hampshire
• Writing for the Court: LAMPRON
• Citation: 402 A.2d 490,119 N.H. 389
• Decision Date: 23 May 1979
• Docket Number: No. 78-247
• Parties: Sarah H. CULHANE v. Robert E. CULHANE.

Page 490

402 A.2d 490 119 N.H. 389 Sarah H. CULHANE
v.
Robert E. CULHANE. No. 78-247. Supreme Court of New Hampshire. May 23, 1979.

[119 N.H. 390] 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

Page 491

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[119 N.H. 391] 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 [119 N.H. 392] 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....