Magrill v. Magrill

Citation184 N.Y.S.2d 516,16 Misc.2d 896
PartiesMillicent MAGRILL, as guardian ad litem of the infant, Pamela Hope Magrill, Plaintiff-Respondent, and Millicent Magrill, individually, Plaintiff-Appellant, v. Lester G. MAGRILL, Defendant-Appellant-Respondent.
Decision Date20 January 1959
CourtNew York Supreme Court — Appellate Term

Frank L. Miller, New York City, for defendant-appellant-respondent.

Jacob Goldstein, New York City, for plaintiff-respondent-appellant.

NICHOLAS M. PETTE, Justice.

The plaintiff Millicent Magrill and the defendant were married on June 19, 1949. They had one child, Pamela Hope Magrill, born on July 21, 1953. They separated on or about September 15, 1953. During the pendency of a separation action in the Supreme Court, Kings County, in which the defendant herein interposed a counterclaim, the parties settled their differences by executing a separation agreement on May 27, 1954.

So far as pertinent here, they agreed that the writing, 'whenever called upon to be construed, shall be governed by the laws of the State of New York'; that the 'custody and control' of Pamela, then eight months of age, should be given to her mother during the child's minority, with certain rights of visitation to her father. He promised to support his child by paying $20 each week to her mother during her minority or until her prior marriage. In addition, he promised to pay $15 per week for his wife's own support during their joint lives or until she remarried.

Plaintiff Millicent Magrill instituted an action for divorce in Mexico, in which both parties appeared and submitted to the jurisdiction of the court. The resulting decree of divorce, entered on or about June 24, 1954, incorporated the terms of the separation agreement pursuant to an express provision thereof. The entry of such decree, however, did not relieve the defendant of his contractual obligations under the agreement, inasmuch as it was therein provided that it 'shall not be extinguished by merger as a result of incorporation * * * but shall survive * * * and shall be binding and conclusive on the parties for all time.' Hettich v. Hettich, 304 N.Y. 8, 14, 105 N.E.2d 601; Schmelzel v. Schmelzel, 287 N.Y. 21, 25-26, 38 N.E.2d 114, 115; Goldman v. Goldman, 282 N.Y. 296, 301, 305, 26 N.E.2d 265, 267, 269; Sommer v. Sommer, Sup., 94 N.Y.S.2d 23, affirmed 277 App.Div. 998, 100 N.Y.S.2d 141; Schwartz v. Schwartz, 206 Misc. 548, 133 N.Y.S.2d 813. The defendant unilaterally reduced the total weekly installments payable to his former wife for her own and for their daughter's support, as provided in the agreement of separation, from $35 to $20 per week commencing December 7, 1954. He further reduced such payments to $10 per week from on or about September 20, 1955, which reduction was followed by a letter to his former wife two days later, which he concededly wrote with the aid of an attorney. This letter was received in evidence and read to the jury solely to impeach his former wife's credibility when she denied that he had ever complained about his rights of visitation of his child. It contained not only assertions of alleged facts upon which the defendant relied for his claim that his visitation rights under the agreement of separation were 'persistently refused' but stated that he was 'obliged to treat the agreement between us as breached and violated on your part, and, accordingly, must disclaim any liability or obligation to provide for you in any amount and for our child in the amount designated in such agreement.' He concluded that he would thereafter provide for the child 'not in accordance with our agreement but rather in accordance with my means and ability, as required by law.' He then unilaterally fixed the amount of the support and maintenance for his child in the sum of $10 per week.

On or about December 16, 1955, this action was commenced to recover the balance of installments which remained unpaid under the separation agreement. The amount sought to be recovered in the first cause of action, asserted on behalf of the defendant's former wife, individually, was by consent amended at the trial to the sum of $395, as of March 20, 1957. The second cause of action, asserted on behalf of the infant by her mother, as guardian ad litem, was similarly amended, but to the sum of $2,195 as of the same date. There was no dispute as to these amounts and the jury was so charged without objection.

Prior to the commencement of this action, and on or about November 3, 1955, an application was made to the Supreme Court, Kings County, for the appointment of a guardian ad litem for the infant. This application was exhibited at the trial but objection to the failure to have a guardian ad litem duly appointed before the commencement of the action was raised for the first time upon a motion by the defendant, made subsequent to the trial, to vacate and set aside the verdict of the jury. Immediately thereafter, and by an order of the Municipal Court of the City of New York, Borough of Brooklyn, dated June 7, 1957, the defendant's former wife was duly appointed guardian ad litem of the infant, nunc pro tunc. The failure duly to appoint a guardian ad litem prior to the service of process did not denude the court of jurisdiction over the subject matter of the cause of action asserted on behalf of the infant. That was a mere irregularity which was cured by the entry of the order appointing a guardian ad litem, nunc pro tunc, as aforesaid. Rima v. Rossie Iron Works, 120 N.Y. 433, 24 N.E. 940; Holmes v. Staib Abendschein Co., 198 App.Div. 354, 190 N.Y.S. 449; Randall v. Randall, 12 Misc.2d 468, 172 N.Y.S.2d 985.

Nevertheless, the cause of action on behalf of the infant must be dismissed. While an objection that a plaintiff is not the real party in interest must be raised before trial or pleaded as an affirmative defense (Spooner v. Delaware, L. & W. R. Co., 115 N.Y. 22, 30, 21 N.E. 696; Wellman v. Holzer, Sup., 56 N.Y.S.2d 299, 302, affirmed 271 App.Div. 775, 66 N.Y.S.2d 407), else it is deemed waived, we are not dealing here merely with the question as to who is the real party in interest but with an issue of substantive law, which was reached by the motion to dismiss the complaint for legal insufficiency. Kendall v. Kendall, No. 1, 200 App.Div. 702, 193 N.Y.S. 658. Moreover, the agreement of separation in the instant case was at all times before the court as an exhibit. Under these circumstances, an appellate court is not confined to a choice between the opposing constructions of an agreement between the parties, but may give it a 'meaning conceivably * * * different from that which either party justifiably attached to the words,' provided that each party had full opportunity to adduce all pertinent evidence bearing on the construction of the agreement and there was no claim 'that either party would or could have offered any further evidence.' Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271, 274.

While the separation agreement before us prorated into separate amounts the support the defendant undertook to furnish to his then wife and to his infant daughter, both sums were expressly payable 'to the Wife.' Accordingly, the cause of action for the infant's support 'vested only in the mother' and cannot be enforced by the infant individually 'without showing that her mother refuses to bring it * * *.' Kendall v. Kendall, No. 1, supra, 200 App.Div. at page 705, 193 N.Y.S. at page 661. Children have 'no direct interest in the money paid to the mother even though it be wholly or partly for their benefit * * *.' Yates v. Yates, 183 Misc. 934, 937, 51 N.Y.S.2d 135, 138; Percival v. Luce, 9 Cir., 114 F.2d 774, 775. The allegation in the fourth paragraph of the first cause of action that Mrs. Magrill 'duly performed all of the conditions of such agreement on her part', which has been re-alleged by her in the second cause of action brought on behalf of the infant, compels the conclusion that the child was supported and maintained by her mother as she had impliedly, if not expressly, agreed to do in the separation agreement. Gorman v. Gorman, 283 App.Div. 250, 252, 128 N.Y.S.2d 658, 661.

The defendant's affirmative defense that his former wife breached the separation agreement by her failure and refusal to accord him the rights of visitation of his child as therein provided, if established, would bar the recovery of all unpaid installments of support therein provided, including the amount which was allocated for the maintenance and support of the child. Recovery of installments payable by a husband to his wife for the support of their children has been denied in cases where he has been wilfully and unreasonably deprived of his rights of visitation as provided in a separation agreement, upon the ground that the covenants were dependent. Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; Altschuler v. Altschuler, 248 App.Div. 768, 289 N.Y.S. 59; Morgan v. Morgan, 2 Cir., 201 F.2d 868; Harris v. Harris, 8 Misc.2d 198, 165 N.Y.S.2d 846; Richards v. Richards, 5 Misc.2d 46, 157 N.Y.S.2d 874; Matter of Noel's Estate, 173 Misc. 844, 19 N.Y.S.2d 370. In distinguishing a covenant against molestation contained in a separation agreement from one providing for visitation of children, our Court of Appeals recently observed in Borax v. Borax, 4 N.Y.2d 113, 116, 172 N.Y.S.2d 805, 808:

'There installments of money are to be paid, at least in...

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