Slatt v. Slatt

Decision Date21 March 1985
Citation488 N.Y.S.2d 645,64 N.Y.2d 966,477 N.E.2d 1099
Parties, 477 N.E.2d 1099 Joann C. SLATT, Respondent, v. Abner P. SLATT, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 102 A.D.2d 475, 477 N.Y.S.2d 178, should be affirmed, with costs.

Paragraph fifth of a separation agreement, prepared by defendant's counsel and executed by the parties on July 1, 1969, provides for the periodic payment of various sums by the husband to the wife for her "support and maintenance" until she "dies or remarries". In addition to the monthly installments required to be paid pursuant to subparagraphs (a) and (b), subparagraph (c) calls for the payment of $500 on December 31, 1969 and "on December 31, 1970 the sum of $1,000.00; and on each and every December 31st thereafter, a like sum of $1,000.00." Subparagraph (g) provides that: "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."

The trial court found that, despite an 11 year period during which the husband made no payments of a cost of living increase on the annual payments of $1,000 under subparagraph (c) the foregoing language obligated him to pay a cost of living increase on those annual payments, as well as on the monthly installments called for under subparagraphs (a) and (b). A divided Appellate Division affirmed, the majority finding that the language was unambiguous and that such ambiguity as may exist should be resolved against the defendant. We agree.

In adjudicating the rights of parties to a contract, courts may not fashion a new contract under the guise of contract construction (Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 210 N.Y.S.2d 516, 172 N.E.2d 280); rather, they are required to discern the intent of the parties, " 'to the extent that [the parties] evidenced what they intended by what they wrote' " (Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 277 N.E.2d 641). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (10 N.Y.Jur., Contracts, § 193; Hall & Co. v. Orient...

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