Gold v. Gold

• Decision Date: 21 December 1989
• Citation: 156 A.D.2d 874,549 N.Y.S.2d 860
• Parties: Stanley J. GOLD, Appellant, v. Mary L. GOLD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 860

549 N.Y.S.2d 860

156 A.D.2d 874

Stanley J. GOLD, Appellant, v. Mary L. GOLD, Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 21, 1989.

Jerome O. Nealon, Binghamton, for appellant.

Dolores Holmes Milkie, Broome Legal Assistance Corp., Binghamton, for respondent.

Robert Abrams, Atty. Gen. (Pico Paul Ben-Amotz and Jane Lauer Barker, of counsel), New York City, for Workers' Compensation Bd., respondent.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH, and LEVINE, JJ.

YESAWICH, Justice.

Appeal from an order of the Supreme Court (Smyk, J.), entered April 19, 1989 in Broome County, which denied plaintiff's motion for summary judgment and partially granted defendant's motion for summary judgment.

After nine years of marriage, the parties divorced. A separation agreement, which had been executed several months earlier, was incorporated but not merged into the divorce decree; the divorce was granted on grounds of cruel and inhuman treatment. Pursuant to the separation agreement, defendant had exclusive occupancy of the marital home and received support payments from plaintiff. It is undisputed that for approximately seven years following the divorce, defendant paid the mortgage, insurance premiums and real estate taxes on the marital home. In 1984, she failed to meet these payment obligations and the mortgagee initiated foreclosure proceedings.

Plaintiff instituted this action in Supreme Court to compel defendant to make the past-due tax and mortgage payments and moved for summary judgment. Defendant counterclaimed for an increase in support and moved for summary judgment dismissing the complaint. Supreme Court denied plaintiff's motion and granted defendant's motion to the extent of ordering plaintiff to pay the property tax arrears, future taxes and the entire mortgage balance. On this appeal, plaintiff claims that Supreme Court improperly modified the existing separation agreement.

Ordering plaintiff to pay the outstanding mortgage balance was error. The separation agreement expressly provides that "[defendant] shall pay all utilities and the mortgage from the support provided her". Absent assent from both parties, Supreme Court lacked the power to modify or alter the terms of the separation agreement (see, Vranick v. Vranick, 41 A.D.2d 663, 340 N.Y.S.2d 566). And the fact that the mortgagee has since discontinued the foreclosure action does not, as defendant suggests, render this aspect of the appeal moot, for even though the reason behind the order no longer exists, the order itself directing plaintiff to pay the outstanding mortgage retains its vitality. Furthermore, the separation agreement is ambiguous as to who is to pay the property taxes. Significantly, the agreement is silent in this respect. While plaintiff acknowledges that...