Sprentall v. Smallridge
| Decision Date | 27 July 1973 |
| Citation | 347 N.Y.S.2d 659,75 Misc.2d 405 |
| Parties | Dorothy SPRENTALL, Plaintiff, v. Warren J. SMALLRIDGE, Defendant. |
| Court | New York Supreme Court |
Kaman, Berlove, Marafioti & Jacobstein, Rochester (Leonard D. Marafioti, Rochester, of counsel), for plaintiff.
Goldstein, Goldman, Kessler & Underberg, Rochester (Frank T. Crego, Rochester, of counsel), for defendant.
Plaintiff wife brought this action to recover a judgment for payments claimed due her under a separation agreement and the defendant husband moves for summary judgment dismissing the complaint. In issue is whether, under the separation agreement, the wife is entitled to payments after her remarriage.
After the date of the separation agreement, the parties were divorced, but the agreement survived the decree. Under the agreement, 'the husband hereby agrees to pay the Wife, the sum of $500 per month commencing November 1, 1969, for a period of two years from November 1, 1969 provided, however, that in the event of the death of the husband within said two year period, payments shall continue to the Wife from the estate of her husband for a period of three years from November 1, 1969.' The agreement is silent concerning the effect of the wife's remarriage upon the husband's obligation to pay.
(Anno. 48 A.L.R.2d 318, 320.) Here, the question is not specifically settled by the terms of the agreement; the agreement is silent concerning the effect of the wife's remarriage upon the obligation to pay.
Where the agreement made no mention of the wife's remarriage, and nothing was said concerning the duration of the payments, our courts have held, in the absence of any intention to the contrary, that the payments should terminate upon the wife's remarriage (Griffin v. Faubel, 64 Misc.2d 653, 315 N.Y.S.2d 243; Davis v. Welber, 278 App.Div. 36, 103 N.Y.S.2d 239).
In Griffin (supra, p. 654 of 64 Misc.2d, p. 245 of N.Y.S.2d), the agreement was 'entirely silent as to its duration or the effect on its provisions of a subsequent divorce and plaintiff's remarriage' and the court held that the obligation to pay ceased upon the remarriage.
In Davis (supra), the separation agreement provided for a monthly payment of $100 to the wife and it was also silent concerning the duration of the payments. Nothing in the agreement indicated the obligation to pay should survive the wife's remarriage. The court held that the obligation terminated upon remarriage.
Where, however, the agreement indicated an intention that the obligation was to survive the remarriage, the courts have held that the obligation continued despite the remarriage (Wersinger v. Cook, 187 Misc. 1059, 66 N.Y.S.2d 238; Gush v. Gush, 14 Misc.2d 146, 178 N.Y.S.2d 429, affd. 9 A.D.2d 815, 192 N.Y.S.2d 678; Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717).
In Wersinger (supra), the agreement provided that if the wife remarried, the husband was relieved of the obligation to maintain life insurance for her benefit. From this express provision terminating the insurance benefits, upon remarriage, and the absence of any provision terminating the support payments, the court found an intention that the support payments were to survive remarriage.
In Graham (supra, p. 578 of 266 App.Div., p. 720 of 42 N.Y.S.2d), the agreement provided that yearly payments of $12,000 were to be made to the wife "until the establishment of the certain Trust Fund hereinafter...
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