Moat v. Moat

• Decision Date: 15 March 1967
• Parties: Yvonne MOAT, Respondent, v. Douglas MOAT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 921

277 N.Y.S.2d 921

27 A.D.2d 895

Yvonne MOAT, Respondent, v. Douglas MOAT, Appellant.

Supreme Court, Appellate Division, Third Department.

March 15, 1967.

Clark, Bartlett, Caffry & Dube, Robert S. Stewart, Glens Falls, for appellant.

Thomas J. Angelo, South Glens, for respondent.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.

PER CURIAM.

Appeal from an order of the Supreme Court which granted plaintiff's motion for allowances for temporary alimony, counsel fees and the maintenance of the child of the parties' marriage, pending the determination of an action brought to rescind a separation agreement and for a judgment of divorce or, alternatively, of separation.

The basis of the Special Term's action was its finding that the separation agreement is 'void on its face as a matter of law'; this, however, on the Court's erroneous construction of the agreement as violative of the statute inhibiting any contract between husband and wife 'to relieve the husband from his liability to support his wife' (General Obligations Law, § 5--311), and as 'relieving him of his obligation or construed or applied so to relieve him' (McMains v. McMains, 15 N.Y.2d 283, 285, 258 N.Y.S.2d 93, 95, 206 N.E.2d 185, 187); Special Term also noting the principle that 'contracts which entirely or partially exonerate the husband or which 'release' him from his obligation or 'diminish it' are condemned as void' (Haas v. Haas, 298 N.Y. 69, 72, 80 N.E.2d 337, 339, 4 A.L.R.2d 726). The Court did not pass on the grounds for rescission alleged in the complaint and these, of course, must await a plenary trial.

The agreement, in a form long recognized and accepted, neither wholly nor in part exonerates defendant from his obligation to support his wife; nor does it release or diminish his obligation. By it, he is required to make regular, substantial, periodic payments to his wife, as a measure of his continuing obligation to her. (Haas v. Haas, supra, p. 72, 80 N.E.2d p. 339) Paragraph '15', which Special Term found critical, does nothing more than to make clear the fact that the husband's duty is to be measured by the payments provided by paragraph '6(a)'. In holding otherwise, the Special Term mistakenly relied on Pomerance v. Pomerance, 301 N.Y. 254, 93 N.E.2d 832, Kyff v. Kyff, 286 N.Y. 71, 35 N.E.2d 655 and Burkhardt v. Burkhardt, 28 Misc.2d 976, 215 N.Y.S.2d 425. In Pomerance was involved merely the sufficiency of the complaint in an action for rescission; in Kyff the underlying separation agreement was void because it involved a minimum lump-sum settlement of $3,000; and in Burkhardt total support was eliminated because the wife was gainfully employed.

Neither can it be concluded that the separation agreement was rendered void by reason of paragraph '12', providing that the obligation as to support can be incorporated into any decree for divorce or judicial separation, but that the provisions of the agreement shall not merge in the order, decree or judgment. Such provisions are constantly used and are sanctioned by the courts. (See McMains v. McMains supra; Holahan v. Holahan, 298 N.Y. 798, 83 N.E.2d 696; Schmelzel v. Schmelzel, 287 N.Y. 21, 38 N.E.2d 114; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Gush v. Gush, 14 Misc.2d 146, 178 N.Y.S.2d 429, affd. 9 A.D.2d 815, 192 N.Y.S. 678; 16 N.Y.Jur.Dom.Rel., § 733.) But heed must be given the caveat explicit in McMains v. McMains (supra, 15 N.Y.2d p. 285, 258 N.Y.S.2d p. 95, 206 N.E.2d p. 186) that a decree predicated on a separation agreement which survives the decree may be modified to increase alimony where the wife is 'actually unable to support herself on the amount * * * allowed and is in actual danger of becoming a public charge'.

The validity of a separation agreement will be determined only upon careful inquiry and not upon conflicting affidavits upon a motion for temporary alimony in a matrimonial action. (Yunis v. Yunis, 286 App.Div. 1126, 146 N.Y.S.2d 489; Sullivan v. Sullivan, 285 App.Div. 967, 138 N.Y.S.2d 648; Matter of Warren, 207 App.Div. 793, 202 N.Y.S. 586; 16 N.Y.Jur., Dom.Rel. § 694; Grossman, N.Y.Law of Dom.Rel., § 400 (Suppl.).) Clearly the case falls within the general rule that alimony Pendente lite is not permitted until a subsisting separation agreement is set aside (Kulok v. Kulok, 20 A.D.2d 568, 569, 245 N.Y.S.2d 859, 860; Brock v. Brock, 1 A.D.2d 973, 151 N.Y.S.2d 27; Ascher v. Ascher, 213 App.Div. 183, 210 N.Y.S. 515; Grossman, N.Y.Law of Dom.Rel., §§ 787, 840--841).

We are obliged to reverse, also, the provision of the order which, in effect, increases the payment for the child's support from $46.15 per week to $50 per week. It is true, of course, that minor children are not parties to a separation agreement executed by their parents, and the courts are not bound by the support provisions...