Littlejohns v. Littlejohns
| Decision Date | 14 March 1972 |
| Citation | 349 N.Y.S.2d 462,76 Misc.2d 82 |
| Parties | Gilbert Michael LITTLEJOHNS, Plaintiff, v. Tatjana O. L. LITTLEJOHNS, Defendant. |
| Court | New York Supreme Court |
Ferdinand J. Wolf, New York City, for plaintiff.
Joseph A. D'Addario, New York City, for defendant.
The court tried this action brought by a husband for a divorce grounded upon section 170(6) of the Domestic Relations Law, to wit; that 'The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by plaintiff that he or she has substantially performed all the terms and conditions of such agreement.'
The written agreement in question was executed by the parties on August 19, 1963.
It was prepared, signed and duly acknowledged in the State of Florida, where the defendant wife then and still resides.
The wife opposes this action upon two grounds: Firstly, that the husband has failed to fulfill his financial obligations under the agreement, and secondly, that this agreement is not an 'agreement of separation' as that term is employed in section 170(6), Domestic Relations Law, and thus cannot afford the plaintiff a basis for this action.
The facts in this case are not in serious dispute.
The parties were married in Egypt in 1947. (One child was born of this union, who has since reached his majority.) They took up residence in the State of New York in 1955 and some time thereafter amicably separated, the wife and child moving to Florida, the husband remaining in New York. Some three and one half years later (1963), the parties executed the agreement in question. There is not dispute that for some time prior to, and certainly since the execution of this agreement, the parties have lived separate and apart and have not cohabited as man and wife.
With respect to defendant's contention that the plaintiff has not fulfilled his financial obligations, the evidence as the trial proved otherwise. Aside from some minor late payments, the court finds that the plaintiff has 'substantially performed' all his obligations under the agreement. These include not only the making of the required periodic payments, but also the purchase of a home in Florida for the use of the wife and child.
Defendant further contests this action on the ground that the 1963 agreement 'was not an agreement of separation' upon which a divorce may be predicated.
Essentially, defendant asserts it is not a separation agreement because it does not specifically rpovide for 'custody, alimony or the right to live separate and apart'.
With respect to alimony, the agreement does in fact provide for periodic payments for support of both wife and child, including upkeep of the home to be purchased for them. In addition, the plaintiff was obligated to provide health insurance and make such additional medical payments as may be required. Life insurance policies then in force for the benefit of the wife were required to be maintained. Provision was also made for further education of the child. Thus, contrary to defendant's contention, these support provisions do provide a full plan for 'alimony' for the wife and support for the son such as is usually found in separation agreements.
As to the question of custody, the fact was that the wife did have custody of the child; nor was this right ever contested. Additionally, implicit in the provisions of the agreement obligating the plaintiff to provide support for the wife and child, purchase of a Florida home for both, and payment for the child's education, is that the child would not be with him but rather would reside with the mother in Florida. Assuming, without conceding, that a custody provision is a necessary element for a valid separation agreement, the agreement in this case, if not directly, did inferentially provide that the custody of the child be with the mother.
The defendant further contends that the instrument in this case 'does not meet the requirements of separation agreements pursuant to Florida law' because of the absence of a stipulation that it shall be lawful for the parties to live separately.
We must thus consider whether, as defendant contends, Florida choice of law is to be aplied in construing this instrument, and if so, whether the absence of a separate and apart clause is fatal to its validity.
In the absence of anything evincing a contrary intent, the validity, effect and construction of a separation agreement is governed by the law of the place where the contract was made (16 N.Y.Jur., Domestic Relations § 693). This is so particularly where the circumstances indicate that the parties intended that contractual obligations be performed in the place where the contract was made (Chase National Bank v. Central Hanover Bank & Trust Company, 265 App.Div. 434, 39 N.Y.S.2d 541).
In the instant case, the wife had lived in Florida some three and one half years prior to the agreement's execution. It was prepared, executed, and acknowledged in Florida. Performance under the terms was to take place in that State, e.g., payments were to be made by depositing same in a Florida bank, and a house was to be purchased and maintained by the husband in Florida for the wife and child, who were to reside there. In fact, the sole contact the marriage had with New York State was that the parties had once lived here and that the plaintiff had continued as a New York resident. The place which thus appears to have the most significant contact with this agreement is Florida (Von Tresckow v. Von Tresckow, 15 Misc.2d 1090, 181 N.Y.S.2d 406; Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99).
How, therefore, would this agreement fare under Florida law--particularly with respect to the contention by defendant that a valid separation agreement must contain a provision permitting the parties to live separately? Such Florida authority as could be found by the court indicates that a 'separate and apart' clause is not a necessary ingredient for a validly enforceable separation agreement.
In Bare v. Bare, Fla.App., 120 So.2d 186, the Florida courts considered an agreement similar to the one at bar. There too the validity of the agreement was questioned because of its failure to contain a clause specifically permitting the parties to live separate and apart.
Reversing a lower court which held to the contrary, the District Court of Appeals stated (p. 188):
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