Waxstein v. Waxstein

• Court: United States State Supreme Court (New York)
• Writing for the Court: LOUIS B. HELLER
• Citation: 90 Misc.2d 784,395 N.Y.S.2d 877
• Decision Date: 28 July 1976
• Parties: Lillian WAXSTEIN v. Arthur WAXSTEIN.

Page 877

395 N.Y.S.2d 877 90 Misc.2d 784 Lillian WAXSTEIN
v.
Arthur WAXSTEIN. Supreme Court, Special Term, Kings County, Part V. July 28, 1976.

Page 878

Baratta & Goldstein, New York City, for plaintiff.

Holtzman & Hoffman, New York City, for defendant.

LOUIS B. HELLER, Justice.

In this action for divorce the complaint sets forth seven causes of action wherein the plaintiff seeks the following relief;

1. A judgment of absolute divorce upon the ground of a prior written agreement of separation.

7. An injunction requiring defendant to commence proceedings for a "Get", i. e., a Jewish religious divorce.

The matter was tried before me without a jury. While both parties were in agreement that the divorce should be granted on the ground of the separation agreement, I reserved decision on the entire case to examine and decide on the basis of factual and legal interpretations of the various provisions of the separation agreement. The parties were given an opportunity to submit memoranda of law, affidavits and an agreed statements of facts.

Page 879

On the basis of the papers submitted, the court finds the following relevant facts as not being in dispute: The plaintiff and defendant were married on June 7, 1953. They have three children of this marriage, currently ages 18, 19 and 22. On May 29, 1973 the parties duly executed a separation agreement prepared by the plaintiff's attorney. Pursuant to this agreement plaintiff moved out of their marital residence before April 30, 1974 as provided in paragraph Tenth, and the deed transferring her interest in the property to the defendant is held in escrow by her attorneys under the terms of paragraph Thirty-First. Defendant still resides at the former marital home.

The defendant has failed to comply with the separation agreement. He refuses to give the plaintiff a "Get" in accordance with paragraph Seventh. It is appropriate to recite a few general principles concerning separation agreements.

A separation agreement is a contract and if lawful when made will be enforced by the courts like any other contract unless impeached or challenged for some cause recognized by law (Goldman v. Goldman, 282 N.Y. 296, 300, 26 N.E.2d 265, 267; Schmelzel v. Schmelzel, 287 N.Y. 21, 26, 38 N.E.2d 114, 115). And like other contracts the provisions of a separation agreement may be enforced by specific performance if the remedy at law is inadequate (Lottridge v. Lottridge, 73 Misc.2d 614, 617, 342 N.Y.S.2d 251, 255; 2 Foster-Freed, Law and the Family, § 28:35). But the court may not modify or alter its provisions so long as the agreement remains unimpeached (Stoddard v. Stoddard, 227 N.Y. 13, 20-21, 124 N.E. 91, 93-94; Goldman v. Goldman, supra, 282 N.Y. p. 300, 26 N.E.2d p. 267; Stillman v. Stillman, 20 A.D.2d 723, 724, 247 N.Y.S.2d 569, 571 (2d Dept.)). Where the terms of the agreement are clear and unambiguous the intent of the parties must be found therein (Matter of Wosnitzer, 47 A.D.2d 402, 404-405, 366 N.Y.S.2d 653, 655-656); any ambiguities will, however, be construed against the party who drafted the contract (Mars Associates Inc. v. Health & Mental Hygiene Fac. Impr. Corp., 47 A.D.2d 5, 6, 364 N.Y.S.2d 67, 69).

The burden of establishing an affirmative defense as to the agreement rests with the party asserting such defense and the burden must be met by a fair preponderance of the evidence (Birnbaum v. Birnbaum, 70 Misc.2d 462, 464-465, 333 N.Y.S.2d 890, 893-894, affd. 76 Misc.2d 1087, 352 N.Y.S.2d 600). In this connection, the court finds unavailing defendant's affirmative defense that the separation agreement is void under section 5-311 of the General Obligations Law as embracing a provision (viz., paragraph Seventh) which purports to dissolve the marriage between the parties. This paragraph should not be equated to or regarded as "an express provision requiring the dissolution of the marriage" (General Obligations Law § 5-311; Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804, affd. 23 N.Y.2d 791, 297 N.Y.S.2d 298, 244 N.E.2d 869), nor does the paragraph have a direct tendency to promote a divorce (Matter of Fleischmann, 64 Misc.2d 924, 926, 316 N.Y.S.2d 272, 274, affd. 37 A.D.2d 1044, 326 N.Y.S.2d 376).

1. Judgment of Divorce.

Plaintiff is entitled to a judgment of absolute divorce pursuant to subdivision 6 of section 170 of the Domestic Relations Law as the court finds that the parties "have lived separate and apart pursuant to a written agreement of separation * * * for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that she has substantially performed all the terms and conditions of such agreement".

In accordance with the terms of the separation agreement the entire agreement is to be incorporated, but not merged, into the judgment of divorce.

7. Injunction Requiring Defendant to Furnish a "Get" to Plaintiff.

In her last cause of action plaintiff demands judgment enjoining the...