MacPherson v. MacPherson

• Decision Date: 26 April 1974
• Docket Number: No. 73-1710.,73-1710.
• Citation: 496 F.2d 258
• Parties: Dorothy I. MacPHERSON, Plaintiff-Appellee, v. Charles R. MacPHERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

496 F.2d 258 (1974)

Dorothy I. MacPHERSON, Plaintiff-Appellee, v. Charles R. MacPHERSON, Defendant-Appellant.

No. 73-1710.

United States Court of Appeals, Sixth Circuit.

Argued February 7, 1974.

Decided April 26, 1974.

Charles F. Clarke, Cleveland, Ohio, for defendant-appellant ; Squire, Sanders & Dempsey, Cleveland, Ohio, Vaden M. Lackey, Jr., Denny, Lackey, Chernau & Castleman, Nashville, Tenn., on brief.

Robert I. Auler of Auler Law Offices, Champaign, Ill., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and McALLISTER, Senior Circuit Judge.

PHILLIPS, Chief Judge.

In this conflict of laws case, we are called upon to interpret a separation agreement. The agreement provided, inter alia, that the husband (Charles MacPherson) was to pay $600.00 per month to the wife (Mrs. Dorothy MacPherson) until her remarriage. The wife remarried a bigamist and this marriage subsequently was annulled and declared void ab initio. Thereupon, the wife sued for payments under the agreement alleging that she had never remarried.

Jurisdiction is based upon diversity of citizenship. The Tennessee rule of conflict of laws controls.

The critical issue is whether the word "remarriage" means a valid marriage, as the District Court in essence held, or whether this word signifies a time at which the wife's support would commence from a different source. We reverse the District Court and hold that the wife's remarriage terminated the husband's obligation under the agreement.

The parties to this suit were married in 1947 in Illinois, their native state. They remained in Illinois until 1950. Between 1950 and 1962, due to Mr. MacPherson's employment, they lived in three other states. Their final move as a family was to Connecticut in 1962 when Mr. MacPherson was promoted to a position in New York. On December 15, 1966, Mr. MacPherson separated from his wife and moved to New York City.

During the next year, the parties negotiated a separation agreement. Mr. MacPherson signed the agreement in New York on October 13, 1967, and it was forwarded to Connecticut where Mrs. MacPherson signed it on October 31, 1967. The agreement provided, inter alia:

"FIRST : . . . that each may reside or acquire a domicile from time to time at such place or places as he or she may desire. . . .

"FIFTH : . . . The Husband shall pay to the Wife for the support and maintenance of the Wife the sum of $600.00 per month . . . beginning July 1, 1967.

"All payments to be made to the Wife by the Husband under this Paragraph FIFTH shall cease upon her death or remarriage or upon the death of the Husband.

"SIXTH : . . . Simultaneously with the execution of this Agreement, the Husband agrees to execute and enter into an Insurance Trust, of even date herewith, the principal beneficiaries of which will be the Wife and the children of the parties hereto. . . . All of the terms and conditions of the Insurance Trust are hereby incorporated herein by reference with the same force and effect as though the same were set forth herein in full.

"TENTH: . . . It is further agreed to execute any and all further assurances, covenants, agreements or other documents necessary or reasonably required hereafter to effectuate or carry out the terms of this agreement.

"TWELFTH : . . . In the event of the entry of a decree or judgment of divorce, this agreement shall survive as an independent document and shall remain in full force and effect . . . Each party agrees to execute such instruments as shall be necessary from time to time to fulfill the terms of this agreement."

On December 15, 1967, Mrs. MacPherson's attorney mailed the agreement to the attorney for Mr. MacPherson in New York, with instructions that :

"These documents are to be held in escrow by you subject to receipt at our office of properly executed trust agreement, check for $75.86 for taxes, check for $75.00 due Dorothy, check for $1000 payable to Wake, See & Dimes, and undertaking by you to get proper endorsements for the life insurance policies for the trust."

Mr. MacPherson obtained a Mexican divorce on December 29, 1967. Mrs. MacPherson entered an appearance, through counsel, in those proceedings, and the validity of the divorce decree has not been challenged on this appeal. The decree provided that the separation agreement was approved, but not merged with the decree.

On April 3, 1968, at Folkston, Georgia, Mrs. MacPherson entered into a purported marriage with Frank L. Miles, a/k/a Frank L. Mileski. They returned to Connecticut for two months, until June 15, 1968, when they moved to Florida. On October 22, 1968, Mrs. MacPherson discovered that Frank Miles had a wife from a prior marriage that had not been terminated. Mrs. MacPherson immediately moved to Illinois and remains a resident of Champaign County in that State.

Meanwhile, Mr. MacPherson remarried on January 26, 1968, and a son was born to that marriage on September 28, 1970. He ceased making the support payments under the agreement beginning on June 1, 1968. Mrs. MacPherson requested resumption of the support payments on November 12, 1968.

Mrs. MacPherson's purported marriage to Frank Miles was annulled and declared void ab initio by the Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois, on November 2, 1971. Mr. Miles entered an appearance at the annulment proceeding, waiving any and all process, notice and procedural prerequisites to the hearing. He did not file an answer.

Having considered the above stipulated facts, the U. S. District Court for the Middle District of Tennessee concluded that Connecticut law would govern the separation agreement, and, therefore, there was no "remarriage" because the bigamous wedding was void ab initio.

Under the doctrine of Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L. Ed. 1477 (1941), the Tennessee conflict of laws rule applies in determining what law governs the interpretation of the separation agreement. See also First American National Bank of Nashville v. Automobile Insurance Co., 252 F.2d 62 (6th Cir. 1958).

Tennessee law considers a separation agreement which is not incorporated into the divorce decree to be a contract. Brown v. Brown, 198 Tenn. 600, 614-615, 281 S.W.2d 492 (1955). The Tennessee conflicts rule is "that a contract is presumed to be made with reference to the law of the place where it was entered into unless it appears that it was entered into in good faith with reference to the law of some other state." Deaton v. Vise, 186 Tenn. 364, 372, 210 S.W.2d 665, 668 (1948). See also Ohio Casualty Insurance Co. v. Travelers Indemnity Co., 229 Tenn. ___, 493 S.W.2d 465, 467 (1973). At least with respect to torts, Tennessee has rejected the "center of gravity" or "dominant contacts" rule in favor of the predictable and uniform rule of lex loci. Winters v. Maxey, 227 Tenn. ___, 481 S.W.2d 755 (1972).

We agree with the District Court's choice of Connecticut as the law governing the agreement. The final signature on the document took place in Connecticut and both parties became bound at that time. Moreover, the facts and circumstances surrounding the parties and the agreement also support the presumption that they intended Connecticut law to govern their rights and obligations. The marital domicile had been in Connecticut, and Mrs. MacPherson and the five children remained there after Mr. MacPherson moved to New York City. Part of the subject matter disposed of pursuant to the agreement was located in Connecticut. Payments were made to Mrs. MacPherson in Connecticut for almost two years. The Insurance Trust which was incorporated by reference into the agreement provided that it would be administered in accordance with Connecticut law. Finally, since the first clause of the agreement specifically recognized that the parties may acquire other domiciles, the presumption is given added weight that the law of the place of making governs.

Mr. MacPherson contends that New York law governs because the escrow letter made delivery contingent on a number of occurrences, and the delivery was completed in New York. We hold that the escrow letter merely required Mr. MacPherson to do what he already had agreed to in the separation agreement and did not constitute a list of conditions precedent. To the extent that the letter mentions additional obligations, it only gives Mrs. MacPherson's attorneys a cause of action against Mr. MacPherson and does not alter the separation agreement.

The parties are in agreement, and our research shows, that Connecticut has never passed on the question of whether a bigamous remarriage is sufficient to terminate support payments under a separation agreement. Under Tennessee conflicts law, there is a presumption that Connecticut law would be the same as Tennessee law. Marsh v. Fowler, 207 Tenn. 377, 381-382, 340 S. W.2d 881 (1960) ; Shepard & Gluck v. Thomas, 147 Tenn. 338, 347, 246 S.W. 836 (1922). Normally, we would follow that presumption. Float-Away Door Co. v. Continental Casualty Co., 372 F.2d 701, 704 (5th Cir. 1966), cert. denied, 389 U.S. 823, 88 S.Ct. 58, 19 L.Ed.2d 76 (1967) ; Gediman v. Anheuser Busch, Inc., 299 F.2d 537, 544 n. 6 (2d Cir. 1962). However, Tennessee law both common and statutory, is silent with respect to the issue at bar, and this presumption therefore is of no assistance in the present case. At any rate, the presumption based on the intent of the parties in having Connecticut law govern takes precedence over the presumption espoused in Marsh and Shepard & Gluck, supra. We note that the presumption based on the place of making is the more specific of the two and that Tennessee courts have placed great emphasis on interpreting contracts in accordance with the presumed intent of the parties. Ohio Casualty Insurance Co., supra; Deaton, supra. Therefore, we must exercise our best judgment as to how a Connecticut court would dispose of the issue at bar.

The state...