Surlak v. Surlak

• Decision Date: 12 September 1983
• Citation: 95 A.D.2d 371,466 N.Y.S.2d 461
• Parties: Ellen P. SURLAK, Appellant, v. Joseph E. SURLAK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 461

466 N.Y.S.2d 461

95 A.D.2d 371

Ellen P. SURLAK, Appellant, v. Joseph E. SURLAK, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 12, 1983.

O'Rourke & Lo Casio, White Plains (Andrew O'Rourke, White Plains, of counsel), for appellant.

Ashley, Lewittes & Burton, New York City (Alvin Ashley, New York City, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, GULOTTA, O'CONNOR and BOYERS, JJ.

GIBBONS, Justice.

We are called on in this appeal to review the propriety of a determination that a portion of the separation agreement between the parties, which provides for monthly payments from the husband to the wife, should be voided. We conclude that the record does not support impeachment of the agreement and that, therefore, judicial intervention to alter the agreement is improper.

I

The parties were married in 1959. They have two children: Linda, born on March 8, 1960, and Robert, born on March 7, 1961. On May 22, 1973, they entered into a separation agreement. The "NINTH" paragraph of the agreement, which is at the center of the controversy between the parties, states: "The husband agrees to pay to the wife for the support and alimoney [sic ] the sum of Six Hundred ($600.00) Dollars per month, recognizing that his income presently prevent [sic ] him from paying more."

Although the defendant husband was not represented by counsel at the time of the execution of the agreement, there is some indication that prior to signing it he showed it to an attorney. Admittedly, defendant, a career police officer and a detective since 1965, showed the agreement to various friends of his who are attorneys, shortly after signing it. He also consulted a tax service and, as a result of advice received, claimed the $600 monthly payment as alimony for income tax deduction purposes from 1973 up to and including 1980. At an examination before trial, defendant acknowledged that plaintiff's attorney had never suggested that he was representing both husband and wife, but had always maintained that he was only representing the wife. Defendant was also told that he had a right to have an attorney of his own. Defendant testified at the trial that, prior to signing the agreement, he "glanced" at the document and the paragraph containing the payment obligation. He also acknowledged that, as of the summer of 1973, he interpreted the NINTH paragraph of the agreement to mean that he was obligated to pay alimony or payments to the plaintiff wife for the rest of her natural days. At no time did defendant institute an action to reform or rescind the agreement.

The two children left home and were emancipated between 1977 and 1979. In July of 1978, defendant, on the advice of his present counsel, stopped making any payments to plaintiff. According to defendant he began putting the $600 monthly sum into a bank account "using my name and both children as beneficiaries * * * I consider it a trust fund or whatever". He continued to take tax deductions for alimony payments for the years 1978, 1979 and 1980.

Plaintiff wife brought this action for a money judgment, based on the separation agreement. As revealed by the trial testimony, the dispute between the parties centers on the "NINTH" paragraph of the agreement. The defendant testified that when he discussed the $600 figure with his wife, prior to signing the agreement, it was solely for the purpose of the "maintenance of the children and the upkeep of the house", and not for the purpose of maintaining plaintiff. According to defendant, the only thing discussed was the sum of money to be paid for the house and the children, with no allocation between the two. Defendant stated that while he was aware, by the summer of 1973, that the "NINTH" paragraph had no provisions for reduction or termination of payments, he "had it in [his] mind that [he] was going to stop once the kids were eighteen".

Plaintiff claims that the $600 sum was intended to aid her in paying for all the household expenses, including the mortgage, her expenses and those of the children. The marital home is owned by the parties as tenants by the entirety. Plaintiff maintains that the sum was not allocated between alimony and child support, nor was the sum to be reduced when the children became adults, because it was anticipated that plaintiff's needs and the household expenses would, in fact, continue to grow past the time the children reached majority. According to plaintiff, she asked for a cost-of-living increase, but defendant refused, stating that "[i]t will all even out as the years go by". From this discussion, plaintiff came to the conclusion that defendant understood and agreed that the $600 sum was to continue after the children left home.

The case was tried on January 28, 1981, without a jury. The trial court found "that the parties agreed on the sum of $600 a month. The question of the support of the children and the expenses of the house are certainly a vital part of the discussion between the parties. At no time did either of them speak specifically to each other in terms of the payment to the wife for herself, for her personal support after the children were gone or after the marriage was terminated".

The court granted plaintiff a judgment for arrears, running from July of 1978 up through the month of the trial, January of 1981. This portion of the decision was premised on the court's view that defendant could not be relieved of "past payments" because of his failure to bring an action "to annul or void the agreement", "the fact that the defendant did go to see counsel; and that a number of years went by in which the payments were made and he accepted the benefits [for tax purposes] of unallocated payments".

Despite this reasoning, the court annulled the "NINTH" paragraph, commencing February 1, 1981. The court stated the basis of this decision, as follows:

"However, with respect to the agreement itself, the answer that is before this Court sufficiently recites enough of the mistake on the part of the plaintiff [sic ] to permit the Court to relieve him, under the circumstances, of the continuing obligations of the agreement with respect to support payments. The language does say 'support and alimony'. It therefore contemplated, to some extent, support of the children and alimony of the wife without allocation. The Court is unable to divide that sum of money and rewrite the agreement. Under the circumstance that the children have left, it is clear that the lack of a provision for allocation makes necessary the intervention of the Court, not for the purpose of rewriting, but only to annul a specific portion. I do not annul any other part of the agreement."

II

Plaintiff appeals from so much of the judgment as annulled the "NINTH" paragraph of the agreement. Her primary contention is that the trial court exceeded its authority by modifying a separation agreement to which both parties had assented. Defendant argues that the trial court "interpreted the Agreement and intention of the parties to make provision for child support for their children, and not alimony for the wife", and that, therefore, since the children are emancipated, no further payments are required by the terms of the agreement. Alternatively, defendant maintains that the trial court properly exercised its equitable powers to rescind a portion of the agreement.

It clearly is not the case that the trial court interpreted the agreement as only allowing for child support, excluding alimony. The court specifically held that the inclusion of the terms "support and alimony" in the agreement shows that the parties "contemplated, to some extent, support of the children and alimony of the wife without allocation". This conclusion is sound. As with other contracts, when the terms of a separation agreement are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement (Nichols v. Nichols, 306 N.Y. 490, 496, 119 N.E.2d 351). "It is only on the determination of the meaning of an indefinite or ambiguous contract that the construction placed upon the contract by the parties themselves * * * is to be considered by the court and is of importance in ascertaining the contract meaning" (Matter of Robinson v. Robinson, 81 A.D.2d 1028, 1029, 440 N.Y.S.2d 127; see Dobbins v. Dobbins, 59 A.D.2d 548, 397 N.Y.S.2d 412).

The "NINTH" paragraph refers to "support and alimoney [sic ]" (emphasis supplied). The meaning of the word "alimony" is unambiguous, being understood in both the lexicons of the legal world and of the general public as support for the spouse or former spouse, generally the wife (see, e.g., Gaines v. Jacobsen, 308 N.Y. 218, 223, 124 N.E.2d 290; Webster's Third New International Dictionary, p 53). That the reference to alimony in the "NINTH" paragraph bears this meaning is confirmed in the "FOURTH" paragraph of the agreement, which reads, in part, as follows:

"FOURTH: In the event that a temporary or interlocutory of [sic ] final judgment, order of decree of divorce shall be rendered in any action or proceeding between the parties hereto, such judgment, decree or order shall make no provision for the maintenance of the wife except according to the terms of this agreement, and such portions of this agreement as relate to maintenance of the wife shall be embodied" (emphasis supplied).

It is patently clear that, at least, a portion of the $600 monthly sum was intended for plaintiff's benefit.

Nor may it be said that the agreement is ambiguous on the issue of the reduction or termination of payments to be made when the children reached majority or became emancipated, so as to justify a possible inference from the parties' conduct and the surrounding circumstances that payments were, in fact, intended to cease when either of such events occurred. It has repeatedly been held that where a separation agreement provides for an unallocated monthly...