Richards v. Richards

• Decision Date: 07 December 1956
• Citation: 5 Misc.2d 46,157 N.Y.S.2d 874
• Parties: Helen RICHARDS, Plaintiff, v. Dick RICHARDS, Defendant.
• Court: New York City Court

Page 874

157 N.Y.S.2d 874

5 Misc.2d 46

Helen RICHARDS, Plaintiff, v. Dick RICHARDS, Defendant.

City Court of City of New York, Trial Term, New York County.

Dec. 7, 1956.

Robert Moers, New York City, by Benjamin Machinist, New York City, of counsel, for plaintiff.

Samuel J. Nachwalter, New York City, for defendant.

MAX J. WOLFF, Referee.

This consolidated action was tried before me by consent without a jury. Formal findings were waived.

The plaintiff, who is the defendant's former wife, sues upon a separation agreement by which the defendant undertook to pay to her in any week in which she earned at least $125 the sum of $25 for the joint support of herself and a child of the marriage; for any week in which the plaintiff did not earn $125 she became entitled under the agreement to $25 for her own support and an additional $25 for the maintenance of the child, with the further provision that if defendant's earnings should increase to a figure mentioned in the agreement he would then pay for the child $30 a week instead of $25. Involved in this action are payments which fell due between January 1, 1949, and March 24, 1956. At times the plaintiff earned more than $125 a week; sometimes less. In the beginning the defendant's salary was not large enough to require him to pay the additional $5 a week for the child's support; later it became so. Although the defendant made many payments, some because he was compelled to do so by an order of the Domestic Relations Court, he nevertheless fell substantially in arrears.

The separation agreement was executed in April of 1948. It provided that in the event an action for divorce be brought by either party against the other 'for any reason other than adultery' 'this agreement will be incorporated in and made a part of any decree which may be granted.' The wife sued the husband in the state of Arkansas on grounds other than adultery. The husband appeared generally in that action, and a decree of divorce was entered in September of 1948 in which it was stated that 'the terms of the said agreement are incorporated in this decree and made a part hereof as if set out word for word herein.' The complaint in the present action contains no reference to the decree of divorce but is based entirely upon the separation agreement. The defendant contends that the separation agreement has been merged in the divorce decree and therefore that the plaintiff may not now sue upon the agreement.

No specific provision was included in this agreement that it should survive a decree of divorce, nor any for its merger therein. Rather, it was stipulated that in the event of the bringing of a suit for divorce 'for any reason other than adultery' 'the complaint in such action shall seek relief, among other things, to make effective the intention of the parties with respect to the care and custody of the child and the support of the wife and the child, as herein provided. * * * The wife agrees that if she brings such action she will not therein seek to obtain support or maintenance for either herself or the child or the custody of the child that shall in any way be inconsistent with the provisions of this agreement.'

The agreement in suit resembles in certain pertinent respects an agreement of separation which was tangentially but necessarily considered in Goldman v. Goldman, 282 N.Y. 296, 305, 26 N.E.2d 265, 269, where Lehman, C. J., said: 'We point out here that the direction of the court that the defendant shall pay to the plaintiff a sum less than he agreed to pay does not relieve the defendant of any contractual obligation. The direction of the court may be enforced in manner provided by statute and the plaintiff may still resort to the usual remedies for breach of a contractual obligation if there has been such breach, but we do not now decide whether the parties intended that the contractual obligation of the defendant should survive where the court has modified a direction to the defendant to pay the sum fixed by contract.' There is here no such complication as in the Goldman case inasmuch as the decree in hand did not modify the provisions of the separation agreement. In Fry v. Fry, 279 App.Div. 122, 123, 108 N.Y.S.2d 227, 229, affirmed without opinion, 304 N.Y. 889, 110 N.E.2d 501, recovery was allowed upon a separation agreement notwithstanding the subsistence of a Nevada decree of divorce which 'expressly adjudged that the separation agreement was 'approved, adopted and confirmed', and further directed the parties 'to abide thereby and to perform the obligation thereof''. But there the agreement included a stipulation that 'it would continue in full force and effect', 304 N.Y. at page 890, 110 N.E.2d at page 501, in the event either party should obtain an absolute divorce from the other.

A consideration, for present purposes, of the question of the merger of separation agreements in decrees, or their survival, requires examination of the checkered history of the Sureau litigation, which was before various courts in two separate actions. Sureau v. Sureau, Sup.App.T., 113 N.Y.S.2d 56, not otherwise reported; Sureau v. Sureau, Sup.App.T., 116 N.Y.S.2d 91, not otherwise reported, reversed 280 App.Div. 927, 116 N.Y.S.2d 470, which reversal was affirmed without opinion, 305 N.Y. 720, 112 N.E.2d 786, where certified questions were answered. In 113 N.Y.S.2d 56, 57, a majority of the Appellate Term of the Supreme Court, First Department, said: 'The institution of the action in Nevada for a divorce did not constitute a repudiation of the separation agreement. * * * The approval of the agreement of the parties and its inclusion in the decree neither merged nor nullified it. Indeed, incorporation was done pursuant to an express provision of the separation agreement itself. As the decree did not destroy the agreement or deprive the wife * * * of her rights thereunder, she is entitled to resort to the usual remedies for breach of the contractual obligation [citing cases].' In a dissenting opinion, Hofstadter, J., said: 'Assuming that, even without a stipulation for survival, the agreement may nevertheless survive its adoption in the decree, the question still remains whether the parties here intended that the agreement should be merged in the Nevada decree. If they so intended, the court must give effect to such intention [citing cases]. The terms of the Nevada decree necessarily have a direct and important bearing on this issue. Yet, the plaintiff has not submitted the Nevada decree in support of her motion for summary judgment, and the only light thrown on its terms appears in the affidavits of the attorneys summarizing and interpreting its provisions. I do not think summary judgment can rest on such a flimsy foundation.' The view of the dissenting Judge, to wit, that whether there was an intention to merge the separation agreement in the divorce decree presented a question of fact and hence a triable issue, prevailed in the second of the actions between the same parties, brought to recover subsequent installments under the same agreement. 280 App.Div. 927, 116 N.Y.S.2d 470, a 3 to 2 decision, affirmed 305 N.Y. 720, 112 N.E.2d 786.

At the trial of the case in hand the divorce decree of the Arkansas court as well as the agreement of separation were received in evidence. There was no oral testimony concerning the intention of the parties, which must therefore be ascertained from the documentary evidence, that is, from the agreement and the decree. the pertinent provisions of the agreement, as hereinabove set forth, do not seem to me to warrant the inference of an intention that it be merged in a later decree. Nor did the decree, by incorporating the agreement, effect a merger; as the Sureau and other cases demonstrate, under New York law it did not obliterate the existing contractual obligations of the parties. Cf., in addition to cases hereinabove cited, Hettich v. Hettich, 304 N.Y. 8, 14, 105 N.E.2d 601, 603; Hoyt v. Hoyt, 265 App.Div. 223, 224, 38 N.Y.S.2d 312, 314; and see Statter v. Statter, 2 A.D.2d 81, 87, 153 N.Y.S.2d 471, 477. The law of Massachusetts is to the same effect; it has been there held that an agreement which provided for the inclusion, in a decree, of its terms relating to support but did not say that it was to survive the decree nevertheless survived and that parol evidence of a contrary intention was incompetent. Freeman v. Sieve, 323 Mass. 652, 84 N.E.2d 16. Elsewhere the authorities are in conflict. Cf. Harris v. Commissioner of Internal Revenue, 340 U.S. 106, 119-120, 71 S.Ct. 181, 95 L.Ed. 111 and footnote 4 of dissenting opinion; also see 32 A.L.R.2d, pp. 1145 et seq.

Here it may be thought necessary to look to the law of Arkansas in order to determine the effect of the decree upon the agreement. Cf. Matter of Nichols' Estate, 201 Misc. 922, 925-926, 107 N.Y.S.2d 311, 313-314. The rule of that jurisdiction was recently stated by its Supreme Court to be as follows: 'Our cases hold that where a decree for alimony or support is based on an independent contract between parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court's award and is not subject to modification except by consent of the parties. Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am.St.Rep. 102; McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938; Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439. Although a court of equity may decline to enforce payments due under an independent agreement by contempt proceedings where changed circumstances render such payments inequitable, the wife retains her remedy at law on the contract. Pryor v. Pryor, supra.' Lively v. Lively, 222 Ark. 501, 502-503, 261 S.W.2d 409, 410. Thus this action would be maintainable in Arkansas as it is in New York.

The defendant has also interposed an affirmative defense based upon alleged violations of the separation agreement by the plaintiff. It is asserted...