Taft v. Taft

• Decision Date: 11 December 1989
• Citation: 548 N.Y.S.2d 726,156 A.D.2d 444
• Parties: Jane H. TAFT, Respondent, v. Robert L. TAFT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 726

548 N.Y.S.2d 726

156 A.D.2d 444

Jane H. TAFT, Respondent, v. Robert L. TAFT, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 11, 1989.

Hinckley & Silbert, P.C., New York City (Raymond S. Hack, of counsel), for appellant.

Robert D. Arenstein, New York City, for respondent.

Before THOMPSON, J.P., and EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a divorce and to recover arrears for support and maintenance allegedly due under a separation agreement, the defendant husband appeals from so much of an order of the Supreme Court, Kings County (Rigler, J.), entered August 10, 1988, as granted that branch of the plaintiff wife's motion which was to enjoin him from disposing of or removing from the jurisdiction any assets, and which denied his cross motion to dismiss the third and fourth causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises out of a separation agreement which contained, inter alia, a provision that the parties "shall proceed" with a divorce on the ground of abandonment and specified that the defendant would pay certain court costs. The defendant allegedly refused to make the payments as required by the agreement. The plaintiff commenced the instant action and moved, inter alia, to compel the defendant to comply with the separation agreement and to enjoin the defendant from disposing of any assets. The defendant cross-moved to dismiss both the third cause of action which sought a conversion divorce based upon the agreement, and the fourth cause of action, which sought to enforce the support and maintenance provisions of the agreement. The Supreme Court declined to direct the defendant to comply with the agreement, because, in its opinion, such relief is only available in a plenary action. However, the court enjoined the defendant from disposing of and removing from the jurisdiction any assets and denied the cross motion to dismiss the third and fourth causes of action.

The defendant argues that the causes of action based upon the separation agreement should have been dismissed because it contained an express provision requiring that the parties obtain a divorce, which provision cannot be severed from the remainder of the agreement. We disagree.

General Obligations Law § 5-311 provides that a husband and wife cannot contract to alter or dissolve a marriage, but that an agreement shall not be considered such a contract unless it contains an express provision requiring the dissolution of the marriage. While the provision challenged here appears to constitute such an express provision obligating the parties to obtain a divorce (see, generally, Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804; Waxstein v. Waxstein, 90 Misc.2d 784, 395 N.Y.S.2d 877, affd. 57 A.D.2d 863, 394 N.Y.S.2d 253; Alexandre v. Davis, 90 Misc.2d 368, 394 N.Y.S.2d 757; Taylor v. Renzi, 41 Misc.2d 160, 245 N.Y.S.2d 456), we find that the parties intended that the provision should be severed from the rest of the agreement in case it was deemed void.

The Court of Appeals has noted that "whether a contract is entire or severable generally is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted" (Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849; see also, Angeloff v. Angeloff, 56 N.Y.2d 982, 453 N.Y.S.2d 630, 439...