Morgan v. Morgan
| Citation | 201 F.2d 868 |
| Decision Date | 05 February 1953 |
| Docket Number | No. 130,Docket 22527.,130 |
| Parties | MORGAN v. MORGAN. |
| Court | U.S. Court of Appeals — Second Circuit |
MacFarlane, Harris, Dankoff, Martin & Smith, Rochester, N. Y., for plaintiff-appellee; Darrow A. Dutcher, Rochester, N. Y., of counsel.
Lombardo & Pickard, Jamestown, N. Y., for defendant-appellant; Clarence G. Pickard, Jamestown, N. Y., of counsel.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
The plaintiff and the defendant were married in 1935. In 1946 they executed an instrument, dated March 9 and acknowledged March 11 of that year, which provided that they should live apart and would not molest one another. A division of their properties was made and the plaintiff agreed not to compete with the business previously conducted by herself and her husband jointly. They further agreed that the wife should have custody of their three children but the husband was to have the right to visit them at any reasonable time of day and to have them with him for one month during the summer vacation. The defendant agreed to pay $60 to his wife semi-monthly on the first and fifteenth days of the month. The present action was brought to recover these payments for the period from March 15, 1946 to June 29, 1949, at which latter date plaintiff married Kenneth D. Holland. No claim is made for payments that were due in April, May and June 1946, since these had already been made. The complaint alleged that the plaintiff had fully performed her obligations under the separation agreement but that she was compelled to remove herself and her children from Jamestown, New York, where she and her husband had lived, to California because of acts of molestation committed by the defendant. The answer denied that the move to California was justified, and alleged that the plaintiff had violated the separation agreement by preventing the defendant from exercising his right to visit the children and to have them with him for a month during the summer. A separation decree obtained by the defendant in the Supreme Court of the State of New York in 1948, awarding him custody of the children, and a divorce secured in Nevada by the plaintiff in 1946 were asserted as an affirmative defense to the complaint. The trial judge set aside a verdict for the plaintiff rendered by the jury and ordered a new trial on the motion of the defendant. This ruling appears to have been due to the failure of the plaintiff to show that she had not herself broken the agreement of separation without justification.
On the retrial the judge left to the jury the question whether the plaintiff's removal to California was justified by the defendant's actions and the jury again held for the plaintiff. The verdict if generally justified should be reduced by $150 since the plaintiff now admits that the defendant was not credited with payments actually made in that amount. The defendant claims a further credit of $60, asserting that checks withdrawn by the plaintiff from the account of the company conducted by the defendant and herself shortly prior to the separation agreement and a check for $10 for household expenses given by the defendant to the plaintiff a few days after the agreement was entered into were regarded by the parties as constituting the first payment. There was no evidence that the parties intended these checks to satisfy the initial payment and the verdict, which did not take them into account as a payment, precludes their application for such purpose.
In instructing the jury, the judge charged: Later in the charge, he added: ...
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