Galusha v. Galusha

• Decision Date: 10 December 1889
• Citation: 22 N.E. 1114,116 N.Y. 635
• Parties: GALUSHA v. GALUSHA.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 635

22 N.E. 1114

GALUSHA

v.GALUSHA.¹

Court of Appeals of New York.

Dec. 10, 1889.

Appeal from a judgment of the general term of the supreme court, fifth department, modifying a judgment of the special term, granting an absolute divorce on the ground of adultery, so as to reduce the amount of alimony to $3,000 per annum; and further modifying the judgment by the insertion of a provision declaring the force and legal effect of a separation agreement between the parties terminated, and as thus modified affirming the judgment, without costs of appeal to either party. The plaintiff in her complaint alleged adultery on the part of the defendant with there persons. Defendant, in his answer, denied the allegation as to two of the parties named, and set up as a defense to the demand for alimony a separation agreement dated April 30, 1883, executed by the parties to this action and one Galusha Phillips, as trustee. It appears that for a number of years before final separation the relations existing between husband and wife were not pleasant. At times they lived a apart. The evidence tended to show that a little while before making the separation agreement the wife discovered that her husband had been inconstant to the marriage vow, and they immediately separated. The other party to these improper relations was an employe of the defendant, with whom the complaint avers Mr. Galusha had adulterous intercourse, both before and after the separation. After separation, negotiations for a settlement upon the wife of a sum of money, necessary for her support and maintenance, were had. Such negotiations resulted in the making and execution, through the intervention of a trustee, of a separation agreement. By its terms the husband bound himself to pay to the wife the sum of $5,000, to be hers absolutely, for the purchase of a house; the sum of $1,000 for her medical attendance; to give to her the furniture in the house, together with the horse and necessary outfit. He also covenanted, on the part of himself, his heirs, executors, and personal representatives, to pay to the wife $100, on the 1st day of each month, during her natural life. On the part of the wife and Galusha Phillips, trustee, it was agreed to accept and take said sums in full payment and satisfaction for her maintenance and support during her natural life. The said Galusha Phillips, trustee, agreed that the wife should fully support and maintain herself, and that he would save the husband harmless from the payment of any and all sums of money for or on account of the full support and maintenance, medical attendance, and any and all expenses, legal or otherwise, of Sarah F. Galusha, for and during her natural life. It was further agreed that, after the death of the husband, the wife should have the right to continue the agreement, and receive the $100 per month from the husband's estate. In which event, she was to release all right of dower and claims of every kind against the estate. The action resulted in a judgment against the defendant dissolving the marriage between them, because of adultery committed by the defendant. The decree further awarded to the plaintiff the sum of $3,750 yearly. No reference whatever was made in the decree to the agreement of separation. On appeal the general term so modified the judgment as to reduce the annual amount of alimony to $3,000, and also by the insertion of a provision terminating the force and legal effect of the separation agreement. As thus modified, the judgment was affirmed. The defendant appeals to this court.

FOLLETT, C. J., dissenting.

Esek Cowen, for appellant.

J. A. Stull, for respondent.

PARKER, J., ( after stating the facts as above.)

Was it error to disregard the agreement between the parties to this action and the trustee, providing for the support of this plaintiff during her life, and to make such an allowance as to the court seems just? is the question presented for our consideration. The trial court apparently adopted the view that, inasmuch as the statute empowers the court to require the wrong-doing husband to provide for the support of the wife, it may permit the agreement to stand, and, in addition thereto, compel the defendant to pay such other or further sum as the surrounding circumstances suggest to be just. On the other hand, the general term proceed upon the theory that the plaintiff is not entitled to her support, under and by virtue of an agreement, in which she and her trustee contract that the defendant shall not be called upon to pay any other sum for that purpose, and at the same time be permitted to receive an additional allowance for her support by virtue of a judgment of the court, and therefore modified the judgment appealed from by the insertion of a provision declaring the termination of the force and legal effect of the separation agreement. It is well, therefore, at the outset, to consider the validity and binding force of this contract which one court ignores and another brushes away.

Marriage is favored in the law, and, as a contract not to marry is against public policy and void, so, too, is a contract between husband and wife to be divorced, or in the happening of a future event to live apart. But, while a contract to separate in the future is void, it is now too well settled, both in England and this country, to admit of discussion, that after a separation has taken place a contract may be made, through the intervention of a trustee, which is effective to bind the husband to contribute the sums therein provided for the future support of the wife. 1 Bish. Mar. & Div. §§ 637, 650; Carson v. Murray, 3 Paige, 483;Magee v. Magee, 67 Barb. 487;Pettit v. Pettit, 107 N. Y. 677, 14 N. E. Rep. 500; Calkins v. Long, 22 Barb. 97. The contract of separation is also valid, so far as relates to the indemnity given to the husband by the trustee. Such covenants are mutual and dependent. Wallace v. Bassett, 41 Barb. 92;Dupre v. Rein, 7 Abb. N. C. 256. The contract between these parties was made after actual separation, and through the intervention of a trustee. By its terms, the defendant obligated himself to pay, for the benefit of this plaintiff, certain fixed sums of money, and in addition thereto to pay to the trustee, for her benefit, $100 monthly during her natural life. On the part of the plaintiff and the trustee, it was covenanted to ‘accept said payments in full payment and satisfaction for the maintenance and support of said Sarah F. Galusha during her natural life; and the said Galusha Phillips, trustee, in consideration of the several payments hereinbefore mentioned, does hereby agree to and with the said party of the first part that said Sarah F. Galusha shall fully support and maintain herself, and provide all things of all kinds necessary for her full support and maintenance; and that said Sarah F. Galusha will perform all acts and covenants which she has herein agreed to do and perform, and to save said party of the first part harmless from the payment of all sums of money for or on account of the full support, maintenance, medical attendance, and any and all expenses, legal or otherwise, of said Sarah F. Galusha, for and during her natural life.’ In view of the situation of the parties, the contract was, at the time of its execution, valid and binding upon all the parties thereto. The defendant has fully performed on his part, and it would seem as if he were entitled to the protection which it was stipulated that full performance should give to him.

The argument that, upon the granting of the decree...