Howland v. Stitzer

• Decision Date: 08 October 1952
• Docket Number: No. 103,103
• Parties: HOWLAND, v. STITZER et al.
• Court: North Carolina Supreme Court

Page 583

72 S.E.2d 583

236 N.C. 230

HOWLAND, v. STITZER et al.

No. 103

Supreme Court of North Carolina.

Oct. 8, 1952

David H. Armstrong, Troy, for defendant, appellant Hawes.

William J. Cocke and C. N. Malone, Asheville, for plaintiff, appellee.

DENNY, Justice.

In the State of New York, where an action for divorce is brought by a husband or wife, and the final judgment of divorce has been rendered in favor of the wife, the Court upon application of the husband on notice, and proof of the remarriage of the wife, must modify such judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payment of money for the support of the wife. Thompson's Laws of New York, Civil Practice Act, § 1172-c; Dumproff v. Dumproff, 138 Misc. 298, 244 N.Y.S. 597; Kirkbride v. Van Note, 275 N.Y. 244, 9 N.E.2d 852, 112 A.L.R. 243.

The New York divorce decree, dissolving the marriage between the plaintiff and the defendant, Mrs. Hawes, which decree directed the defendant therein to support his wife, Mrs. Amber Howland, the plaintiff therein, during the entire period of her lifetime in accordance with the terms of the agreement between the parties dated 2 April, 1947, having been modified as authorized and provided in the above statute, the parties involved are relegated to their contractual rights under the agreement. Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Severance v. Severance, 260 N.Y. 432, 183 N.E. 909; Goldfish v. Goldfish, 193 App.Div. 686, 184 N.Y.S. 512. This simply means that although the agreement may constitute a valid and enforceable contract, the provisions therein can no longer be enforced by a contempt order. Goldman v. Goldman, supra; Levy v. Levy, 149 App.Div. 561, 133 N.Y.S. 1084; Kunker v. Kunker, 230 App.Div. 641, 246 N.Y.S. 118; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118.

A contract between husband and wife to separate in the future is void, but it is too well settled, in this country, to admit of discussion, that after a separation has taken place a valid contract may be made, which will bind the husband to contribute the sums therein provided for the future support of his wife. Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114, 6 L.R. A. 487; Kunker v. Kunker, supra; Schnitzer v. Buerger, 237 App.Div. 622, 262 N.Y.S. 385; Winter v. Winter, 191 N.Y. 462, 84 N.E. 382, 16 L.R.A.,N.S., 710; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261.

Where parties to a separation agreement have the legal capacity to contract and the subject matter involved is lawful, and the provisions contained therein are just and equitable, and it has been properly and voluntarily executed, in the absence of fraud or duress, the courts are without power to modify it. Galusha v. Galusha, supra; Goldman v. Goldman, supra; Kunker v. Kunker, supra.

In the last-cited case it was pointed out that the wife had the choice of two methods for obtaining support-by agreement or by judgment. The Court said [230 App.Div. 641, 246 N.Y.S. 121]: 'Both had their advantages and disadvantages. The contract method had permanence. No matter what hardships it might later impose upon her husband, there was no power in the court to modify it * * *. The agreement could not be enforced by contempt proceedings, nor by sequestration of property. On the other hand, if she submitted her claims for support to the court, inquiry would be made into the means and earning capacity of her husband and a sum fixed as a just and adequate substitute for her support. * * * Payments might be secured or enforced by contempt proceedings or sequestration. * * * If she remarried, the judgment must be modified in respect to alimony.' Civil Practice Act, § 1159 (now Section 1172-c).

The New York courts recognize the validity of separation agreements made during marriage, so long as they are not agreements to separate or to release the husband from his obligation to support his wife. In re Rhinelander's Estate, 290 N.Y. 31, 47 N.E.2d 681; Winter v. Winter, supra; Clark v. Fosdick, 118 N.Y. 7, 22 N.E. 1111, 6 L.R.A. 132; Galusha v. Galusha, supra.

The sole remaining question for determination on this appeal is whether the plaintiff, in view of the facts and circumstances disclosed by the record, is entitled to allege collusion as a defense to the individual defendant's rights under the separation agreement entered into 2 April, 1947.

The plaintiff in this action insists that the above agreement was entered into by and between the parties as a scheme to obtain a divorce in violation of Section 51 of the Domestic Relations Law of the State of New York. In his brief, however, he states, 'that he had previously entered into an agreement on September 18, 1946 which prescribed that he should pay $350.00 per month which was very onerous, and which was terminable on her remarriage; that thereafter she had threatened never to remarry; that the agreement had been entered into without knowing his rights and without impartial counsel; and that the agreement of April 2, 1947 was entered into pursuant to an agreement that she should give him a divorce, institute an action and that he would not defend the same.'

It is well to note, in this connection, that the action against the plaintiff for divorce had been pending for nearly two months before the second separation agreement was entered into. The plaintiff is very careful not to deny the truth of the allegations or the evidence in support of his adulterous conduct, the ground on which the divorce was granted. He insists that the divorce was properly and legally granted; that the collusion affected only the separation agreement. Or to put it another way, he contends there was no imposition of fraud on the court that could possibly affect the validity of the divorce granted, but that the separation agreement was collusive and should be so held, thus releasing him of all obligations under it. It appears that the moving consideration on his part in making the provision for the support of his wife for life, regardless of her marital status, rather than for life or until her remarriage, was (1) to get out from under the onerous payment to her of $350 per month, and (2) to assure him that she would proceed with the pending divorce action without undue delay. He was anxious to be divorced so that he could remarry. He now insists upon the validity of everything that was done in so far as it inures to his benefit or has any bearing on the validity of the divorce decree, but demands the right to repudiate every provision that imposes any burden or obligation on him.

In discussing separation agreements in 17 Am.Jur., Divorce and Separation, Section 499, page 408 et seq., it is said: 'The validity of such agreements depends on whether there is an attempt to obtain a divorce not justified by the real facts and thus to practice a fraud on the court. An agreement between the parties, not involving an imposition on the court or a suppression of facts, but intended merely to facilitate the proofs and smooth the asperities of the litigation, is valid * * *. Under this rule, where a separation...