Weil v. Poulsen

• Decision Date: 07 April 1936
• Court: Connecticut Supreme Court
• Parties: WEIL v. POULSEN.

184 A. 580

121 Conn. 281

WEIL v. POULSEN.

Supreme Court of Errors of Connecticut.

April 7, 1936

Appeal from Superior Court, New London County; Allyn L. Brown Judge.

Suit on a separation agreement and for other relief by Astrid Ellen Poulsen Weil against Hans Rasmus Poulsen, wherein defendant filed a cross-complaint, which was tried to the court. Judgment for plaintiff, and defendant appeals.

Error in form of judgment only, and judgment directed.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and JENNINGS JJ.

John T. Robinson, of Hartford, and L. Horatio Biglow, of Deep River, for appellant.

Nathan Aaron and Benjamin A. Markman, both of Hartford, for appellee.

AVERY Judge.

The plaintiff and defendant were married at Copenhagen, Denmark on April 30, 1910. In that year, they came to the United States and established their residence in Brooklyn, N. Y., and lived there together as husband and wife until shortly before August, 1923, when they separated. On February 13, 1919, they legally adopted an infant child who is now seventeen years of age. Since the parties separated, the child, a girl, has been with the plaintiff and been cared for by her. On August 23, 1923, after the parties had separated and while they were living apart, they entered into an agreement which contained provisions fixing their respective rights and interests in their real and personal property, and, in addition, provided that the daughter should live with the plaintiff, subject to rights of visitation on the part of the defendant; that he should pay the daughter's tuition in a private school, and also pay the plaintiff for her own support and that of the child $15 a week until August 23, 1924; $20 a week until August 23, 1925; and thereafter $25 a week " during the natural life of" the plaintiff. The present suit is brought upon this contract, the claim in the complaint being failure to make the payments for support as therein provided. The plaintiff asks money damages and, in addition, an order compelling the defendant to continue to make payments as provided in the contract and for other equitable relief necessary in the premises. The answer, after denying the substantive allegations of the complaint, sets up a later separation agreement, dated December 10, 1924, limiting the obligation to pay for the support of the plaintiff and the child to the period of the natural life of the plaintiff, " or until she remarries in case the plaintiff and defendant are legally divorced," and alleges that the parties were subsequently divorced and that the plaintiff has remarried. A cross-complaint was also filed claiming damages and an accounting for the proceeds of property mentioned in both agreements. The plaintiff filed an answer to this cross-complaint denying that she had signed any agreement affecting or altering the contract of August 23, 1923; and that if she did sign another agreement, her signature was obtained by fraud and misrepresentation.

The trial court found that payments in the amount of $13,085 were in arrears under the contract and, after allowing $800 for paintings of the defendant sold by the plaintiff, rendered judgment for the plaintiff to recover $12,285, and canceling the agreement of December 10, 1924, on the ground that her signature thereto was procured by the defendant's fraud. The vital issue on this appeal is whether the provisions in the first contract, obligating the defendant to pay to the plaintiff a fixed sum weekly during her " natural life," were superseded by the provisions of the agreement of December 10, 1924, that these payments were to continue until the plaintiff " remarries in case the parties are legally divorced."

The trial court has found these facts: After the parties had separated, the contract of August 23, 1923, was prepared by counsel and executed and was an instrument under seal, properly signed, witnessed, and acknowledged. The defendant had fallen behind in his payments thereunder in April, 1925, and since then has paid nothing. In May, 1924, the parties filed a petition with the King of Denmark asking for a divorce. The petition was made at the desire and suggestion of the defendant, and included a reference to alimony which the defendant would pay for the support of his wife and adopted child in accordance with an agreement referred to and incorporated in the petition. The petition for divorce as originally filed was returned to the defendant because the Danish authorities required certified copies of the separation agreement. On December 10, 1924, the defendant wrote the plaintiff that their petition for divorce had been denied because the Danish authorities required three certified copies in Danish of their agreement signed by both parties and further information about their adopted child, which information he refused to supply. Subsequently, on the same day, after conference with the Danish consul who stated that he would make a declaration to the Danish authorities about the adoption of their child which would suffice, the defendant decided to renew his attempt to obtain a Danish divorce, and thereupon by his second letter of December 10, 1924, he requested the plaintiff to sign under his name the inclosed translation of their agreement and return to him. At that time, the agreement of August 23, 1923, was the only one ever entered into in writing between them.

The plaintiff, on December 10, 1924, signed the three Danish translations inclosed in the letter. She did not read the translation word for word, but glanced through it, and did not discover or suspect that any change had been made in the essentials of their original contract, but believed the translation to be a brief version of the principal provisions of their separation agreement without any material change in the terms thereof. Except for the change in regard to the effect of the plaintiff's remarriage, the translation does contain a brief version of the principal provisions of the separation agreement. From August 23, 1923, until December 10, 1924, the defendant never suggested either orally or in writing any change in the terms of their separation agreement. The trial court found that the plaintiff's signature to the second agreement was obtained by the deliberate fraud and deceit of the defendant. The defendant challenges the finding of fraud and in this connection has requested numerous changes in and additions to the finding, but there is no occasion upon this appeal to consider the issue of fraud. The trial court also found these additional facts: On February 3, 1925, the King of Denmark granted a divorce to the parties on the ground of the infidelity of the defendant. On November 2, 1925, the plaintiff married her present husband, Eric Weil; and on April 24, 1926, the defendant remarried.

The separation agreement of August 23, 1923, was made in New York between parties there domiciled and was plainly a New York contract to be government in its interpretation by the laws of that state. Kranke v. American Fabrics Co., 112 Conn. 58, 60, 151 A. 312; Levy v. Daniels' U-Drive Auto Renting Co., Inc., 108 Conn. 333, 338, 143 A. 163 61 A.L.R. 846. In New York, a contract between husband and wife who are actually separated and living apart, providing for the support of the wife, is not considered against public policy, but such arrangements are favored. The husband, however, is not thereby relieved of the obligation imposed upon him by law to support his wife or children. Winter v. Winter, 191 N.Y. 462, 473, 84 N.E. 382, 16 L.R.A. (N.S.) 710. Nor is such an agreement invalidated by a subsequent divorce between the parties. Galusha v. Galusha, 116 N.Y. 635, 645, 22 N.E. 1114, 6 L.R.A. 487, 15 Am.St.Rep. 453; Clark v. Fosdick, 118 N.Y. 7, 17, 22 N.E. 1111, 6 L.R.A. 132, 16 Am.St.Rep. 733; Carpenter v. Osborn,...