Ferro v. Bologna

• Decision Date: 08 June 1972
• Citation: 286 N.E.2d 244,31 N.Y.2d 30,334 N.Y.S.2d 856
• Parties: , 286 N.E.2d 244 Gladys FERRO et al., Respondents, v. Rose BOLOGNA et al., Appellants, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 856

334 N.Y.S.2d 856

31 N.Y.2d 30, 286 N.E.2d 244

Gladys FERRO et al., Respondents, v. Rose BOLOGNA et al., Appellants, et al., Defendants.

Court of Appeals of New York.

June 8, 1972.

Julius J. Venusti, New York City, for appellants.

Brian Weyl, Massapequa, for respondents.

GIBSON, Judge.

The appeal involves the rights of third-party beneficiaries of a separation agreement which has correctly been found invalid with respect to certain support provisions.

Plaintiffs Comparetto and Popkin sue for the proceeds of certain insurance upon the life of their deceased father, claiming under a provision of their parents' 1958 separation agreement stipulating that the husband would continue in force certain group life insurance and, further, 'that the Husband may make a beneficiary change, removing the Wife as beneficiary on the said group life insurance policy and making the children beneficiaries thereunder'. Appellants Bologna, who are decedent's sister and her husband, are the named beneficiaries of the policy in issue. They contend that the separation agreement is void as in contravention of former section 51 of the Domestic Relations Law (now General Obligations Law, Consol.Laws, c. 24--A, § 5--311) providing that 'a husband and wife cannot contract * * * to relieve the husband from his liability to support his wife'.

In and by the separation agreement, the wife did, indeed, waive support for herself, as well as for the two children, then small infants. ¹ To that extent the agreement contravened the statute and was unenforceable; and the issue, of course, is whether the entire agreement, and thus the provision for the maintenance of insurance for the benefit of the children, was similarly voided.

In July, 1958, about two months after the making of the agreement, decedent made the permitted change of beneficiary, by naming the children as beneficiaries. The policy continued in force until decedent's death in October, 1970, and it was only then that the children discovered that in August, 1961, decedent had again made a change of beneficiaries, by naming appellants as such. This action for declaratory judgment that the children are entitled to payment of the insurance proceeds in accordance with the provisions of the separation agreement was commenced against the named beneficiaries, the insurer and the decedent's employer, the latter having effected the group coverage. Plaintiffs moved for summary judgment for the amount of the face of the policy. The defendant beneficiaries cross-moved for summary judgment, or, in the alternative, for partial summary judgment for the amount by which the coverage at death exceeded the coverage at the time the separation agreement was made. ²

Defendants Bologna, the named beneficiaries, were awarded summary judgment, Special Term finding the separation agreement void as intended to relieve the husband of his liability to support his wife and further, that the provision relating to insurance coverage was not separable. Holding to the contrary, the Appellate Division granted plaintiffs' motion for summary judgment and directed the corporate defendants to pay the policy proceeds to the plaintiff children. The Appellate Division held that the 'agreement is not tainted with such all-pervasive illegality that it must be declared void in its entirety' and concluded that '(e)ven though that portion of the agreement dealing with support was illegal and unenforceable by the husband, he, having reaped the benefit of his wife's fealty to the agreement, should not be permitted to utilize the illegality for his own benefit and thereby deprive his wife (or her children) of the reward for such fealty' (38 A.D.2d 854, 855, 330 N.Y.S.2d 126, 128).

At the outset, we dispose of appellants' argument that the provision that the husband 'may' change the beneficiary of the policy by substituting the names of his children for that of his wife was permissive merely and conferred no rights upon the children. It seems rather clear, however, that once the husband acted to make the change, as he promptly did, the children's rights accrued and vested. Granting the invalidity of the provision whereby the wife 'agree(d) to assume full responsibility for the maintenance and support of the children of the parties and agree(d) that the Husband shall not be required to pay her any monies for the support of the children', the fact remains that she did not call upon the husband for any contribution to the support of the children. In any event, valid consideration is to be found in the wife's waiver of all right to share in the...