Sacks v. Sacks

• Decision Date: 06 December 1990
• Citation: 563 N.Y.S.2d 884,168 A.D.2d 733
• Parties: Patricia A. SACKS, Appellant, v. Steven SACKS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 884

563 N.Y.S.2d 884

168 A.D.2d 733

Patricia A. SACKS, Appellant, v. Steven SACKS, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 6, 1990.

Kantrowitz & Goldhamer, P.C. (Amy Baldwin Littman, of counsel), Chestnut Ridge, for appellant.

Charles J. Acker, Carmel, for respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and HARVEY, JJ.

CASEY, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Stolarik, J.), entered May 24, 1989 in Rockland County, which denied plaintiff's motion for payment of maintenance arrears and counsel fees.

At issue on this appeal is whether plaintiff is entitled, following her remarriage, to maintenance from her former husband pursuant to the terms of a comprehensive separation agreement, which was incorporated into but survived the judgment of divorce, where the agreement specifies that payments shall continue until the death of either of the parties or until five years from the signing of the agreement, whichever occurs earlier. Supreme Court held that plaintiff's remarriage terminated the maintenance provision of the separation agreement. We disagree.

After the parties separated due to marital problems, they entered into a stipulation of settlement in February 1987 which was intended to be "in full satisfaction of all rights acquired either on or before the enactment of the equitable distribution statute in the State of New York". Among the many items covered by the agreement was defendant's payment of maintenance to plaintiff. Pursuant to the article covering this item, defendant was required to make monthly payments of $200 "until the earliest happening of one of the following events: (i) The death of either of the parties hereto; (ii) Five years from the date of the signing of this Agreement". The parties intended the agreement to be an "opting out" agreement and it was executed in accordance with the requirements of Domestic Relations Law § 236(B)(3). Consequently, the terms of the agreement were included in the judgment of divorce, but the judgment expressly provided that the agreement survived and did not merge in the judgment.

When plaintiff remarried in May 1988, defendant stopped paying maintenance, and plaintiff thereafter sought to compel defendant's compliance with the maintenance provision described above. Supreme Court concluded that in the absence of any provision for the continuation of maintenance after plaintiff's remarriage, the obligation terminated. Plaintiff appeals from the order denying her application.

It has been said that as a matter of public policy, a spouse who has remarried cannot compel support from a former spouse (see, e.g., Jacobs v. Patterson, 112 A.D.2d 402, 403, 492 N.Y.S.2d 59). This policy is embodied in Domestic Relations Law § 236(B)(6)(c), which provides that "an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage". Domestic Relations Law § 236(B)(3) provides, however, that an opting out agreement can include a "provision for the amount and duration of maintenance", and the maintenance provisions of Domestic Relations Law § 236(B)(6) are expressly made inapplicable to opting out agreements (Domestic Relations Law § 236[B][6][a]. Thus, an agreement requiring that maintenance shall continue after remarriage is not against public policy and is enforceable (Fredeen v. Fredeen, 154 A.D.2d 908, 546 N.Y.S.2d 60). In Fredeen v. Fredeen (supra), the Fourth Department found that "the agreement clearly evinces the intent of the parties that defendant's maintenance obligation would continue * * * unconditioned on plaintiff's marital status" (id.). In Jacobs v. Patterson, supra, 112 A.D.2d at 403, 492 N.Y.S.2d 59, the Second Department found that "the agreement was silent concerning the effect of remarriage upon defendant's support obligations, and as nothing in the agreement in any way implies that the obligation is to continue, no such obligation should be assumed".

The issue is clearly dependent upon the facts of the particular case, but in reviewing those facts we are guided by the principles set forth in Cohen v. Cronin, 39 N.Y.2d 42, 382 N.Y.S.2d 724, 346 N.E.2d 524, which considered the question of whether a provision in a separation agreement obligating the husband to make support payments to his...