Griffin v. Faubel

• Decision Date: 28 October 1970
• Citation: 64 Misc.2d 653,315 N.Y.S.2d 243
• Parties: Carmen J. GRIFFIN, Plaintiff, v. Dale FAUBEL, Defendant.
• Court: New York Supreme Court

Page 243

315 N.Y.S.2d 243

64 Misc.2d 653

Carmen J. GRIFFIN, Plaintiff, v. Dale FAUBEL, Defendant.

Supreme Court, Monroe County.

Oct. 28, 1970.

Antell, Harris, Githler & Calleri, Rochester, for plaintiff.

G. Rovert McAllister, Syracuse, for defendant.

MEMORANDUM

DANIEL E. MACKEN, Justice.

The parties were married in 1954 and at the time of their separation in 1963 had three minor children. In 1963 they entered into a separation agreement which in separate paragraphs provided for weekly payments for support of the wife and children; gave plaintiff custody of the children with detailed provisions for visitation rights by defendant; and each party relinquished any right to share in the other's estate in the event of the death of either party.

February 22, 1965 in an action commenced by him in the State of Chihuahua, Mexico, in which plaintiff appeared by attorney, defendant secured a judgment of divorce. Although the agreement is silent on the subject, the judgment provided that it be 'incorporated by reference into this decree, same as if it were recited in full, in order that it survive and be in full force and legal effect, after the final judgment, without merging it with same'. Both parties have remarried, defendant March 13, 1965 and plaintiff June 24, 1967. Defendant continues to make the payments provided for support of the children but discontinued payments for plaintiff's support sometime after her remarriage when, as alleged by him, he first learned of the remarriage.

Plaintiff has commenced this action to recover unpaid amounts for her support allegedly payable under the agreement. Defendant has counterclaimed for judgment declaring the agreement null as having been merged with the divorce judgment; specifically declaring the provisions for plaintiff's support null as of the time of her remarriage; and requiring plaintiff to repay the amount of such payments made after her remarriage.

Defendant's contention that the agreement merged in the judgment of divorce is without merit. The judgment was sought and obtained by him and plaintiff's appearance in the action was conditioned upon a requirement that the agreement be incorporated in and survive the judgment. Plaintiff is estopped from questioning the validity of the judgment's provisions. (See also Meyer v. Meyer, 10 Misc.2d 728, 169 N.Y.S.2d 190, modified 5 A.D.2d 655, 174 N.Y.S.2d 701.)

I am of the opinion, however, that defendant's obligation to make payments for plaintiff's support under the agreement terminated upon her remarriage. The agreement is entirely silent as to its duration or the effect on its provisions of a subsequent divorce and plaintiff's remarriage. In summarizing an extensive analysis of cases on the subject it was said in Ann. 48 A.L.R.2d 318, 320.

'While there is little authority directly in point, it is a fair inference from all the cases within the scope of this annotation that, unless a contrary intention is expressed in the agreement, the wife's remarriage terminates the husband's obligation to support her under a separation agreement which is silent on the question of the wife's remarriage.'

While agreements in Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717, construed as a property settlement, and Gush v. Gush, 14 Misc.2d 146, 147, 178 N.Y.S.2d 429, 430, affd. 9 A.D.2d 815, 192 N.Y.S.2d 678, stating that payments were 'for the support and maintenance of the wife as long as she may live' survived the wife's remarriage, nothing in the present agreement supports an inference that such...