Viles v. Viles

• Decision Date: 10 July 1964
• Parties: , 200 N.E.2d 567 Berrilla K. VILES, Appellant, v. James VILES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 672

251 N.Y.S.2d 672

14 N.Y.2d 365, 200 N.E.2d 567

Berrilla K. VILES, Appellant, v. James VILES, Respondent.

Court of Appeals of New York.

July 10, 1964.

Elias Messing and Osmond K. Fraenkel, New York City, for appellant.

William G. Mulligan, Doris Carroll and Jonathan S. Dick, New York City, for respondent.

BURKE, Judge.

In this action by a former wife to recover arrears due under a separation agreement the defense is illegality. We find the defense well founded under section 51 of the Domestic Relations Law, Consol.Laws, c. 14, since the affirmed findings of fact conclusively establish that the agreement was made as an inducement to divorce.

The parties agreed that the venue of the divorce action was to be the Virgin Islands and an oral agreement was reached providing for the payment of plaintiff's traveling expenses to that jurisdiction. The check payable to the order of plaintiff's attorney, designed to cover plaintiff's traveling expesnses to the Virgin Islands, was delivered to the attorney at the same time the separation agreement was executed. The defendant's attorney stated he was 'submitting this agreement for signature to Mr. Viles, predicated upon the understanding arrived at that Mrs. Viles was going to the Virgin Islands for the purpose of obtaining a divorce, and that this was a condition of the execution of this agreement.' This testimony, if credited, clearly evidences a collateral oral agreement which had a direct tedency 'to alter or disslove the marriage', and as such invalidated the written separation agreement (Domestic Relations Law, § 51; Reed v Robertson, 302 N.Y. 596, 96 N.E.2d 894; Matter of Rhinelander, 290 N.Y. 31, 47 N.E.2d 681; Murthey v. Murthey, 287 N.Y. 740, 39 N.E.2d 941; Niman v. Niman, 15 Misc.2d 1095, 181 N.Y.S.2d 260, affd. 8 A.D.2d 793, 188 N.Y.S.2d 948). Through plaintiff at the trial denied knowledge of any agreement relating to a divorce, it was for the trial court to assess the credibility of the witnesses and we are powerless to disturb the finding that there was in fact an agreement relating to a divorce.

Finally there is the circumstance that on December 8, 1951, less than two months after execution of the separation agreement, plaintiff secured a divorce from defendant. Certainly the record, taken as a whole, may be viewed as evidencing the authority of plaintiff's attorney to negotiate a collateral agreement by plaintiff to obtain a divorce. It follows that the trial court committed no error in admitting testimony of defendant's attorney as to conversations with plaintiff's attorney establishing the substance of the agreement.

The order appealed from should be affirmed, without costs.

VAN VOORHIS, Judge (dissenting).

Plaintiff has been defeated in her suit against her former husband to recover an arrearage under their separation agreement, which was entered into prior to a Virgin Islands divorce. His income averaged $23,200 per year. She was to receive $5,500 annually in monthly installments of $458.33, except that the amount which she was to receive was to be reduced to not less than $3,600 per annum if the husband's annual income from trust funds were to fall below $10,000. They had been married for about 12 years. The Virgin Islands divorce decree did not incorporate the agreement, but directed the payment of alimony in an equivalent amount which was later reduced.

Both sides concede and assert that the breach between the parties was irrevocable. Their circumstances were such as would be likely to lead to a divorce, which was in contemplation by each of them at the time when the separation agreement was negotiated and signed.

We are at a loss to understand how the public policy of the State will be promoted by relieving defendant from his obligations under this agreement which he signed, and by denying to this former wife recovery thereon. There is no evidence that the value of the rights secured to her by this agreement was out of proportion to what a divorce court would normally direct to be paid for her support, or that it was not a fair equivalent of his legal obligation to support his wife at the time when it was made. Under such circumstances, as matter of law, it cannot correctly be held that this separation agreement constituted a 'contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife' as provided by section 51 of the Domestic Relations Law. On the contrary, it was entered into in order to satisfy his liability to support his wife. Nothing in this agreement purports to require either of the parties to obtain a divorce from the other. It is not even conditioned on divorce, even though we have held, in effect, that such a condition would not invalidate it (Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544). A separation agreement may be invalid, to be sure, which is conditioned on the obtaining of a divorce by the wife and which gives her so much more in value than her just deserts, as they would normally be appraised by a matrimonial court, as to constitute an inducement to obtain the divorce (Schley v. Andrews, 225 N.Y. 110, 121 N.E. 812; Murthey v. Murthey, 287 N.Y. 740, 39 N.E.2d 941). There is no evidence that this is that sort of situation. Upon the contrary, nobody contends that this agreement caused the dissolution of this marriage, or that it provides excessive benefits for the wife or was entered into for any other reason than to provide suitably for her support. Public policy is not served by compelling estranged marriage partners to contest in court every detail of their marital differences. There is usually bitterness enough as it is. One may...