Jewett v. Jewett

• Decision Date: 10 May 1974
• Citation: 77 Misc.2d 1063,356 N.Y.S.2d 183
• Parties: Linda JEWETT, Plaintiff, v. Rodney JEWETT, Defendant.
• Court: New York City Court

Page 183

356 N.Y.S.2d 183

77 Misc.2d 1063

Linda JEWETT, Plaintiff, v. Rodney JEWETT, Defendant.

City Court of Binghamton, Broome County.

May 10, 1974.

Frederick J. Vavra, Binghamton, for plaintiff.

W. Ben Sherwood, Vestal, for defendant.

WALTER T. GORMAN, Judge.

This is an action commenced by the plaintiff against the defendant to recover support payments that were in arrears. The facts are as follows:

On August 28th, 1971, the plaintiff and the defendant entered into a Separation Agreement wherein the husband agreed to pay the wife $40.00 a week support for the children of the marriage. Another clause in the Separation Agreement stated that either party had the right to sue for an absolute divorce in any jurisdiction, but that no decree obtained would affect the Separation Agreement, and that both parties would continue to be legally bound by it.

On October 26, 1972, the husband obtained a divorce in the State of New York on the grounds that the parties were living separate and apart for one year pursuant to a written Separation Agreement. Despite the clause in the Separation Agreement calling for the husband to pay $40.00 a week support, the Divorce Decree ordered that the custody, care, support and maintenance of the children be referred to the Family Court for determination.

From August 28th, 1971, through December 28th, 1972, the husband paid the wife $40.00 a week support for the children. On the latter date, the Honorable Daniel S. Dickinson, Jr., a Family Court Judge in and for Broome County, ordered the husband to pay the sum of $30.00 commencing January 1st, 1973, and $30.00 weekly thereafter.

The husband, Rodney Jewett, has complied with this order. The wife now brings this action, claiming that despite the Family Court Order, her former husband is still contractually bound by the Separation Agreement and must pay support according to that contract.

Does a Family Court Order changing the amount of support for children, agreed to by both parents and set forth in a Separation Agreement, prohibit either of the parents from bringing an action to enforce their rights under that Agreement? Does it relieve either of the parents of the support obligations set out in the Agreement? Can any change be made either more or less where the husband's financial circumstances have changed?

It is the wife's contention that any support order made by a Family Court Judge cannot change the contractual arrangement previously entered into. In support of her position she cites Birnbaum v. Birnbaum, 70 Misc.2d 462, 464, 333 N.Y.S.2d 890, 893, wherein the Court states: 'The first and best rule of construction of every contract, and the only rule we need here, is that, when the terms of a written contract are clear and unambiguous, the intention of the parties must be found therein'. The applicability of that fundamental rule (to Separation Agreements), has been affirmed by the courts on several occasions. Goldman v. Goldman, 282 N.Y. 296, 305, 26 N.E.2d 265, 269, said 'that the direction of the court that the defendant shall pay to the plaintiff a sum less than he agreed to pay does not relieve the defendant of any contractual obligation. The direction of the court may be enforced in manner provided by statute and the plaintiff may still resort to the usual remedies for breach of a contractual obligation if there has been such breach'. (Goldberg v. Goldberg, 58 Misc.2d 117, 294 N.Y.S.2d 773; McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185; Howland v. Howland, 15 A.D.2d 122, 221 N.Y.S.2d 669; Adams v. Adams, 66 Misc.2d 378, 320 N.Y.S.2d 636).

On the other hand, the husband feels that the support order of Family Court has taken over and supersedes or makes null and void any prior arrangement or agreement. In support of his contention he cites Moat v. Moat, 27 A.D.2d 895, 896, 277 N.Y.S.2d 921, 924, a case having to do with both alimony and support. It held, 'Minor children are not parties to a separation agreement executed by their parents, and the courts are not bound by the support provisions contained in a separation agreement but are required to provide for the support and welfare of minor children as justice requires.'

Belt v. Belt, 67 Misc.2d 679, 682, 324 N.Y.S.2d 623, 627, held that 'The duty of a father to support his child is a fundamental right belonging to a child. This right cannot be abrogated or derogated by any agreement or act of the parents. Furthermore, 'the courts are not bound by the support provisions contained in a separation agreement but are required to provide for the support and welfare of minor children as justice requires.' . . . 'The husband did not divorce his child, or dissolve his liabilities to it. '' Other cases following this same line of thought are: Kern v. Kern, 65 Misc.2d 765, 319 N.Y.S.2d 178; Dee v. Dee, 9 Misc.2d 964, 169 N.Y.S.2d 789; Brock v. Brock, 4 A.D.2d 747, 164 N.Y.S.2d 539, and Pinto v. Pinto, Dom.Rel.Ct., 91 N.Y.S.2d 124. The Courts have clearly recognized that the duty of a father to support his children is distinct from the obligation to maintain his wife (Cohen v. Cohen, 28 Misc.2d 558, 212 N.Y.S.2d 809).

As a matter of public policy, the...