Tirrell v. Tirrell

• Decision Date: 13 December 1921
• Citation: 232 N.Y. 224,133 N.E. 569
• Parties: TIRRELL v. TIRRELL.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 224

133 N.E. 569

TIRRELL

v.TIRRELL.

Court of Appeals of New York.

Dec. 13, 1921.

Action by Mary A. Tirrell against Martin S. Tirrell. From a judgment entered February 24, 1920 (190 App. Div. 463,180 N. Y. Supp. 49) on an order of the Appellate Division, reversing a judgment in favor of plaintiff, entered on a dismissal of the complaint by the Special Term (107 Misc. Rep. 179,177 N. Y. Supp. 357), and directing a dismissal of the complaint, plaintiff appeals.

Judgment of Appellate Division reversed, and judgment of the Special Term affirmed.

McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Bertha Rembaugh, of New York City, for appellant.

John F. Cowan, of New York City, for respondent.

HOGAN, J.

The parties to this action are, and since August 9, 1894, have been, husband and wife. There is no issue of their marriage. Defendant is a physician practicing his profession in the city of New York, and maintained an office in the dwelling house or home of himself and wife. For a number of years the parties apparently lived harmoniously together. In later years their relations became strained, and though they resided in the same house as members of the household, the plaintiff caring for and performing the duties of a wife in the charge of the house, defendant providing for her and for the household expenses, since some time about 1909, they have not cohabited together as husband and wife. In July, 1916, while they were eating luncheon together at their home, defendant caused to be served upon plaintiff a summons and complaint in an action for limited divorce. Plaintiff in due time appeared in the action, and both parties continued the home as a residence until and including September 1st.

Pending the action for a separation, negotiations were entered into between counsel for the parties, which terminated on August 31st in an agreement of separation, and, so far as material here to be considered, provided that defendant should pay to plaintiff the sum of $8,400 in full for her support and maintenance, and in full satisfaction and release of any right of dower in the real property of defendant, and of any and all claims against defendant. The agreement recited that a division of personal property (household goods, ornaments, etc.) theretofore made should not be question between the parties. Plaintiff thereupon executed a release of dower in premises No. 156 West 119 th street, New York, which has been occupied by the parties as a home; also in property at Hollis, Long Island, and has received the sum of $8,400 provided to be paid.

This action was brought to set aside the separation agreement for the reasons (1) that the same was void because made while the parties were living together and thereafter separated because of it; (2) because the provision for the maintenance of plaintiff was inequitable and grossly inadequate in view of the situation of the parties, the earning capacity and property interest of defendant; (3) that due to the nervous and physical condition of plaintiff at the time the agreement was made, the same did not represent her free act.

The trial justice found as matter of fact that the agreement of separation of August 31st was executed while the parties were living together, that the agreement so made was an agreement to separate in the future, and the parties separated after the execution of same.

As matter of law, the trial justice concluded that the separation agreement of August 31st was void and in violation of the Domestic Relations Law (Consol. Laws, c. 14), in that the parties were living together at the time of its execution, and separated thereafter and because of it.

The Appellate Division reversed the above finding and conclusion, and found as matter of fact that on August 31st the parties were actually separated, and have not lived together since; that the agreement was executed for the purpose of providing a competence for plaintiff, and was made after the parties had separated, and because of such separation. As conclusion of law that the separation agreement is in all respects valid and does not violate the Domestic Relations Law.

The trial justice found as matter of fact that there was no consideration for the releases of dower executed by plaintiff and as matter of law that the same should be canceled.The Appellate Division found as matter of fact that there was good and adequate consideration for the execution of the releases, and as matter of law they were valid and not inequitable.

Further findings made by the trial justice, undisturbed by the Appellate Division, were: That plaintiff on August 31, 1916, was 48 years of age, that she had at that time and has not now any income or means of support, except what she received from defendant. That during the year 1916 defendant owned real estate of the value of $13,000. His gross income in the year 1916 from his practice was upwards of $13,000, his net income for that year, after deducting expenses of his business, was upwards of $10,000, and, deducting all necessary living and personal expenses, there remained $6,000 net. That the average earnings and expenses of defendant in other years had been approximately the same as during the year 1916. That plaintiff had expended all she received for her support except the sum of $6,000.

The record discloses that plaintiff had, in addition expended for her support the sum of about $1,000 which she had accumulated and had on deposit in a savings bank; that upon receipt of the money paid her by defendant she invested $6,000 in a bond and mortgage, the income from the same constituting her sole means of support.

We are in accord with the findings of the trial justice above referred to, and his conclusion that, taking into consideration the circumstances of defendant, the provision made for the support and maintenance of plaintiff is unfair, inequitable, and unjust. At the time of the execution of the agreement, the relation of husband and wife had existed between the parties for a period of upward of 22 years. The same relation continues to-day. Neither of the parties was empowered by contract, oral or written, to alter or dissolve that relation. Domestic Relations Law, § 51. In the public interest the state has ever deemed it essential that certain obligations should attach to a marriage contract, amongst which is the duty of a husband to support his wife. Defendant was therefore shorn of power to enter into any arrangement or contract which would relieve him of such obligation. While the law provides that for certain definite reasons a separation may by judicial determination be granted to a husband or wife, the obligation that the husband shall support the wife continues.

In the instant case the husband and wife are living apart. The manner in which the wife is to be supported by the husband in a discharge of the obligation imposed upon him is not dependent upon any whim or caprice on his part, neither is he permitted to arbitrarily determine the measure of support which he shall provide for his wife. To clothe a husband with such discretion might easily result in a wife becoming a public charge, while a husband might continue to live in luxury. The law is not only more stringent, but more merciful, and requires that the measure of support shall be commensurate with the manner in which the parties have lived and a consideration of the ability of the husband to furnish means of support.

In August, 1916, the defendant was 48 years of age. During the 22 years that she and defendant had been married the latter had been fairly successful in the practice of his profession. From year to year his practice and income...