Hirsch v. Hirsch

• Decision Date: 08 July 1975
• Citation: Hirsch v. Hirsch, 372 N.Y.S.2d 71, 37 N.Y.2d 312, 333 N.E.2d 371 (N.Y. 1975)
• Parties: , 333 N.E.2d 371 David HIRSCH, Respondent, v. Ann HIRSCH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 71

372 N.Y.S.2d 71

37 N.Y.2d 312, 333 N.E.2d 371

David HIRSCH, Respondent, v.Ann HIRSCH, Appellant.

Court of Appeals of New York.

July 8, 1975.

Irving L. Weinberger and Samuel Schnitzer, New York City, for appellant.

Samuel Weisman, New York City, for respondent.

GABRIELLI, Judge.

This is a proceeding to vacate a denial of monetary relief by the arbitrator, coupled with a cross motion by plaintiff to have the determination confirmed.Briefly stated, the issue presented is whether an arbitrator's determination that the wife is not presently entitled to support violates public policy, where the parties to a separation agreement have freely contracted for the arbitration of disputes concerning the amount of support the wife is to receive upon her husband's retirement, and where the decision is predicated upon the present resources and income of the parties.

Finding that there had been a change in plaintiff's financial condition and that defendant can and does support herself, the arbitrator refused to award defendant any sum for support and maintenance.On a motion by defendant to vacate the award and on a cross motion by plaintiff for its confirmation, Special Term denied the vacatur motion and granted the cross motion for confirmation.The Appellate Division affirmed, holding the matter beyond the purview of judicial review.Two Justices dissented, 45 A.D.2d 167, 356 N.Y.S.2d 884.We affirm.

On December 9, 1970, plaintiff and defendant wife entered into a separation agreement which was to be incorporated, but not merged, into any divorce decree subsequently obtained.The agreement provided that plaintiff was to pay defendant $115 per week, tax free, for her support and maintenance.It further provided that: '8.In the event that the Husband retires and remains retired from work, occupation or business, then and in any such event and during said period of retirement, the Husband shall no longer be required to pay to the Wife for her support and maintenan the aforementioned weekly payments of One Hundred Fifteen and 00/100 ($115.00) Dollars per week.However, his obligation to support and maintain the Wife shall nevertheless continue and he shall pay weekly to the Wife for her support and maintenance such sum as may be mutually agreed upon between them.In the event, however, that the Husband and Wife fail to mutual agree upon such an amount, the subject matter of the amount to be paid shall be submitted for arbitration to the American Arbitration Association in the City of New York.'

On February 13, 1973, plaintiff was granted a judgment of divorce on the ground that the parties had lived separate and apart for one year pursuant to the agreement.

Throughout the period commencing with the execution of the separation agreement and continuing until February 28, 1973, the date he retired, plaintiff complied with the provisions of the separation agreement.At that time, however, he informed defendant that no more payments would be forthcoming 'until a settlement is reached'.Negotiations followed, but no agreement could be reached and, on June 1, 1973defendant served a demand for arbitration.

Defendant sought $80 per week, tax free, retroactive to March 1, 1973, and, further, the right to make future demands for a greater sum upon her retirement.Plaintiff resisted, claiming that defendant's present income exceeded his retirement income and that, incident to the separation agreement, defendant obtained the bulk of their joint wealth including valuable jointly held securities.

An agreement which is otherwise void and unenforceable is not enforceable in arbitration (Matter of Exercycle Corp. (Maratta), 9 N.Y.2d 329, 335, 214 N.Y.S.2d 353, 356, 174 N.E.2d 463, 465;Durst v. Abrash, 22 A.D.2d 39, 253 N.Y.S.2d 351).Thus, it has 'often (been) held that the broadest of arbitration agreements cannot oust our courts from their role in the enforcement of major State policies, especially those embodied in statutory form'(Matter of Aimcee Wholesale Corp. (Tomar Prods.), 21 N.Y.2d 621, 629, 289 N.Y.S.2d 968, 974, 237 N.E.2d 223, 227).Furthermore, a challenge to the arbitrability of an issue on public policy grounds may be made either on an application for a stay of arbitration (Matter of Aimcee Wholesale Corp. (Tomar Prods.), supra;cf.CPLR 7503, subd. (b)) or, as here on a motion to vacate the award (Durst v. Abrash, supra;cf.CPLR 7511).

Notably, in matrimonial cases, public policy considerations abound: viz. a husband is chargeable with the support of his wife, and a wife, in certain instances, with the support of her husband (Family Ct. Act, §§ 412,415;cf.General Obligations Law,Consol.Laws, c. 24--A, § 5--311); parents are chargeable with the support of their children (Family Ct. Act, §§ 413,414); and, of course, paramount consideration is always given to the best interests of the child (see, e.g., Matter of Lang v. Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763, affd.7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861;see, also, People ex rel. Herzog v. Morgan, 287 N.Y. 317, 39 N.E.2d 255;Sheets v. Sheets, 22 A.D.2d 176, 254 N.Y.S.2d 320).Nonetheless, arbitration provisions in separation agreements have been enforced as to the amount a husband must pay for the support of his wife (Matter of Luttinger, 294 N.Y. 855, 62 N.E.2d 487), or wife and child (Matter of Robinson, 296 N.Y. 778, 71 N.E.2d 214;Storch v. Storch, 38 A.D.2d 904, 329 N.Y.S.2d 474;Matter of Lasek (Lasek), 13 A.D.2d 242, 215 N.Y.S.2d 983), or child alone (Schneider v. Schneider, 17 N.Y.2d 123, 269 N.Y.S.2d 107, 216 N.E.2d 318).Indeed, an agreement to arbitrate custody and visitation rights has been upheld (Sheets v. Sheets, 22 A.D.2d 176, 254 N.Y.S.2d 320, Supra).

As was also recently urged in other areas of concern in Matter of Associat Gen. Contrs. v. Savin Bros., 36 N.Y.2d 957, 373 N.Y.S.2d 555, 335 N.E.2d 859, andMatter of Riccardi v. Modern Silver Linen Supply Co., 36 N.Y.2d 945, 373 N.Y.S.2d 551, 335 N.E.2d 856,...