Leffler v. Leffler
| Decision Date | 16 December 1975 |
| Citation | 376 N.Y.S.2d 176,50 A.D.2d 93 |
| Parties | Allen M. LEFFLER, Plaintiff-Appellant, v. Charlotte LEFFLER, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Paul P. E. Bookson, New York City, for appellant.
Irving Bloomberg, New York City, of counsel (Berlin, Berelson & Rothaus, New York City), for respondent.
Before MARKEWICH, J.P., and MURPHY, LUPIANO, LANE and NUNEZ, JJ.
In this declaratory judgment action, plaintiff seeks a declaration that he is not obligated to pay alimony to defendant pursuant to their written separation agreement. The parties were married in February, 1961. In August, 1969, they entered into a separation agreement which provided in paragraph '6' thereof that the husband shall pay alimony to the wife '(d)uring the life of the (w)ife and until the (w)ife shall remarry'. Subsequently, a Mexican decree of divorce was obtained by the plaintiff. The terms of the separation agreement were incorporated in, but not merged with the decree. In commencing this action on or about July 12, 1974, plaintiff alleges that for approximately five years he has been paying alimony to his former wife 'pursuant to the aforesaid decree and is not in default' and that she is living with another man, although not formally married to him. He charges that his former wife and the person with whom she is alleged to be living have conspired to conceal the fact of their cohabitation 'for the express purpose of attempting to preserve for the defendant (former wife) the right to collect alimony' from the plaintiff. The defendant counterclaimed for alimony arrears commencing with the payment due July 1, 1974. Special Term's granting of the defendant's motion for summary judgment on her counterclaim gives rise to the instant appeal.
It is plaintiff's contention that the issue raised by the pleadings as to whether his former wife is living with another man mandates denial of the summary relief requested by the defendant in light of Domestic Relations Law § 248. The argument is not well taken. Domestic Relations Law § 248 entitled 'Modification of judgment or order in action for divorce or annulment' provides in pertinent part:
'The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or order or of both, directing payment of money for the support of such wife'.
Patently, this provision, by its terms applies to judgments and orders of support. To construe it as applicable to separation agreements would constitute a legislative act which the court may not engage in. Similarly, in viewing the statute as enunciating a policy not to allow 'double support', the court may not impair the contract freely entered into by the parties. No assertion of fraud or mistake attendant upon the execution of the separation agreement is made. So long as a separation agreement stands unimpeached, the court cannot alter or change a provision for separate maintenance and support of the wife without the consent of both parties (Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408 (1912); Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265 (1940)). Obviously, where the separation agreement is impeached, the court under appropriate circumstances is justified in reforming the contract so as to make it conform to the agreement actually made and intended. However, absent such impeachment, there is no authority for the court to cancel a contract made by the parties and in its place substitute one which it thinks proper but which as a matter of fact the parties had never assented to. In Levine v. Levine, 79 Misc.2d 149, 359 N.Y.S.2d 744, the Supreme Court, Kings County (Hirsch, J.) enunciated its view that section 248 of the Domestic Relations Law inferentially supports the striking of the provision for alimony in a separation agreement because the wife was living openly with another man. Such view is incorrect for to so hold, in the absence of the agreement being impeached, would...
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