Slatt v. Slatt

Decision Date05 July 1984
Citation102 A.D.2d 475,477 N.Y.S.2d 178
PartiesJoann Clements SLATT, Plaintiff-Respondent, v. Abner Paul SLATT, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Edith Blumberg, New York City, for defendant-appellant.

Joann Clements Slatt, plaintiff-respondent, pro se.

Before MURPHY, P.J., and KUPFERMAN, ROSS, FEIN and KASSAL, JJ.

KASSAL, Justice.

The issue on the appeal is the construction of a cost of living adjustment clause in a separation agreement and its applicability to annual, as well as monthly maintenance payments. Defendant appeals from a judgment entered on a directed verdict during trial in favor of plaintiff in an action brought to recover support payments due under that agreement.

We disagree with our dissenting colleagues and would affirm the judgment, awarding plaintiff a cost of living adjustment on all support and maintenance payments, consisting of both monthly and annual payments under the clear, unambiguous terms of the separation agreement. In concluding otherwise, the dissent has overlooked critical language from subparagraph (g) of paragraph Fifth, which was the central issue before the trial court. Our colleagues have also failed to take into account the relative position of the parties, including the fact that plaintiff, a housewife, has appeared pro se throughout the course of the litigation while defendant, an attorney, has been represented by counsel who drafted the agreement.

Paragraph Fifth of the separation agreement, executed July 1, 1969, provides for periodic payments to be paid by the husband to the wife for "support and maintenance" in "the following sums" (1) "equal monthly installments of $225.00 per month" which, after January 1, 1970, "shall be increased to $250.00 per month" and (2) annual payments of $1,000 payable on December 31, 1970 "and on each and every December 31st thereafter, a like sum of $1,000.00." The agreement provided that the "December 31st payments * * * shall be due and payable to the wife only in the event that the husband's gross income in the year of said payment exceeds $28,000.00." The first such annual payment was to be in the sum of $500 and was payable December 31, 1969, in recognition of the fact that the first payment was due 6 months after execution of the agreement on July 1, 1969. Subparagraph (g) of paragraph Fifth reads as follows:

"In addition to the foregoing payments, the wife shall receive an additional sum representing a cost of living increase based upon the U.S. Department of Labor Bureau of Labor Statistics Consumer Price Index for Urban Wage Earners and Clerical Workers, above the base figure, as set forth in said Statistics for the year 1969." (emphasis added)

We find that the trial justice correctly interpreted the critical language in the cost of living increase provision, namely "the foregoing payments," as referring to all support and maintenance payments to the wife under the agreement, which were to be made in monthly and annual installments. Had the parties intended otherwise, that the cost of living adjustment apply only to the monthly payments, they would have included language to that effect. Where the contract itself clearly evidences the intention of the parties, it is inappropriate to go beyond the language used by them (see Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 277 N.E.2d 641; Hall & Co. v. Orient Overseas Assoc., 65 A.D.2d 424, 428, 411 N.Y.S.2d 233, aff'd 48 N.Y.2d 958, 425 N.Y.S.2d 66, 401 N.E.2d 189). However, to the extent that the agreement may be ambiguous, it must be resolved against defendant and the language in the contract construed most strongly against him as the party who prepared it (67 Wall Street Company v. Franklin National Bank, 37 N.Y.2d 245, 248, 371 N.Y.S.2d 915, 333 N.E.2d 184; Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 348, 126 N.E.2d 271). In interpreting an agreement, the court's function must be to accord to the language used by the parties its "fair and reasonable meaning" (Heller v. Pope, 250 N.Y. 132, 135, 164 N.E. 881), not to disregard it entirely, as has been done by the majority. As was observed in Sutton v. East River Sav. Bank, 55 N.Y.2d 550, 555, 450 N.Y.S.2d 460, 435 N.E.2d 1075:

"Put another way, 'the aim is a practical interpretation of the expressions of the parties to the end that there be a "realization of reasonable expectations" ' (see Brown Bros. Elec. Contrs. v. Beam Constr. Co., 41 N.Y.2d 397, 400 quoting 1 Corbin, Contracts, § 1; see, also, 4 Williston, Contracts § 600, pp. 284-285). Concordantly, as previously indicated, not merely literal language, but whatever may be reasonably implied therefrom must be taken into account (10 NY Jur, Contracts, § 191, p. 96; Matter of People 267 NY 419, 425 )."

Essentially, what our dissenting colleagues have done is rewrite the agreement by eliminating from subparagraph (g) the words "the foregoing payments" and by reading into paragraph Fifth that the only payments for support and maintenance were the monthly installments and that the annual payments constituted a "bonus." To the contrary, the agreement refers to these annual payments as the "December 31st payments" and provides that they are payable to the wife "for support and maintenance." The mere fact that the plaintiff, who the trial judge found to be "an unsophisticated housewife" in relation to the defendant, an attorney, did refer in correspondence to the annual payments as a Christmas bonus, does not in any way detract from or alter their inherent nature as support payments. The payments were conceivably and probably timed for the convenience of the defendant, to coincide with end-of-the-year bonus payments.

Contrary to the suggestion by the dissent, we have not overlooked the trial court's observation with respect to plaintiff's educational background. The reference was initially made by the defendant in the robing room, out of the presence of the jury, and was taken into consideration by the court in finding that, in relation to defendant, plaintiff was "an unsophisticated housewife." Her educational background, however, has no bearing on the legal issue concerning the interpretation of the agreement and is irrelevant in relation to the undisputed facts that the husband is an attorney, was represented by counsel at all times throughout the litigation and it was his attorney who drafted the separation agreement. There is no evidence that the wife ever had her own counsel after the agreement, and, in any event, she is not an attorney.

Nor is it at all dispositive that plaintiff failed to pursue the cost of living increase as applied to the annual payments prior to the time she asserted the right, particularly in view of her testimony that she was reluctant to do so because of threats "never to make waves or would be in trouble." As found by the trial court, the record...

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