Nichols v. Nichols

119 N.E.2d 351, 306 N.Y. 490

• Court: New York Court of Appeals
• Decided: April 8, 1954
• Status: Published

Opinions

Desmond, J.

We cannot concur in so much of the judgment appealed from as reduces the monthly alimony made payable to plaintiff by a separation agreement between the parties, as confirmed by a Nevada divorce decree obtained by plaintiff against defendant.

Plaintiff and defendant were married in 1934, had three children born in 1935, 1937 and 1938, respectively, separated in September, 1945, and in October, 1946, executed a separation agreement which was “ ratified, confirmed and approved ” by the terms of a decree of absolute divorce obtained by plaintiff against defendant in Nevada in December, 1946. This suit is brought to recover alleged arrearages of support money provided for in that separation agreement, for the months from August, 1950, to August, 1951, both inclusive. The defense bases itself on the fact that, in August, 1950, defendant (over the opposition and protest of plaintiff) took over the custody of the children who, previously and under the terms of the agreement and decree, had lived "with their mother, and on the further fact that in March, 1951, a habeas corpus proceeding brought by the wife to get the children back, resulted in an order awarding their custody to their father (defendant here) subject to rights of visitation by plaintiff and to a right given her by the habeas corpus order “ to have any child with her at such times and during such periods as may be mutually agreeable to relator [plaintiff here] and to such child ”. All three children have lived with their father since he, as the Trial Justice here put it, made in August, 1950, “ a unilateral change in the arrangement ” as to the custody. The record shows that the mother has at all times been ready and willing to resume custody of the children, and, in fact, she brought the habeas corpus proceeding for that purpose. There is no showing or' claim of any unfitness of the mother to care for her children; the opinion in the habeas corpus proceeding merely found, without further specification, “ that the happiness, welfare and best interests of the children will be served if their custody, at least for the present, is awarded to the father ”.

There is, therefore, no basis whatever on this record for any defense (and none is put forward) that any unfitness of the wife has made it impossible for her to care for her children, as provided for in the separation agreement and in the Nevada decree. Nor is there any pleading, proof or finding that she has in any manner breached the separation agreement, as to care of the children. The children are with their father because he refused to return them to the mother, and because the habeas corpus order directed that he keep them. The sole defense of defendant (except for a counterclaim dealing with a separate income tax matter to which we will later refer herein) as against this common-law suit for balances due under the specific promises of the agreement, is his theory that the agreement should be so construed as to reduce the alimony payments, in the situation that has developed. We turn now to that agreement.

The lengthy, elaborate and carefully drawn separation contract has this, and this only, to say as to alimony:

“ Third: For the support and maintenance of the wife and for the support, education and maintenance of the children the husband agrees to make the following payments to the wife:

“ (a) $125,000 in cash upon the delivery of this agreement.

. “(b) Until the death of the husband or the death or the remarriage of the wife, whichever may first occur, the sum of $2,500 per month on or before the first day of each month.

“ (c) In the event of the remarriage of the wife, the amount of said monthly payments shall be reduced at the rate of $15,000 per year.

“ (d) Upon the death or its attaining the age of 25 years, whichever may first occur, of any child, the amount of the monthly payments then being made by the husband shall be reduced at the rate of $5,000 per year in respect to each such child. Provided, however, that if after its attaining the age of 21 years, any child shall not be making its permanent home with the wife, such payments shall also be so reduced for so long as such situation continues and in such event, the husband shall make monthly payments at the rate of $5,000 per year directly to such child until such child returns to the wife’s home or attains the age of 25 years.”

That seems plain enough. The husband, until his death or the death or remarriage of the wife, is to pay to the wife *1 For the support and maintenance of the wife and for the support, education and maintenance of the children ’ ’, the sum of $2,500 per month. There is no allocation (as there was, for instance, in Matter of Herzog, 301 N. Y. 127) of a specific monthly amount for the children, or for each child, or a specific amount for the wife. The $2,500 per month is a single, undivided amount. Furthermore, the agreement (supra) lists categorically the situations in which the monthly $2,500 is to be reduced, that is, first, on the remarriage of the wife, second, on the death or attainment of the age of twenty-five years by any child, or third, in the event of the living apart from the mother, after reaching twenty-one and before reaching twenty-five years, of any child. Not only does that careful listing of exceptions fail to provide for any reduction under the facts as they now are, but it shows that the parties actually had in mind that one or more children might at some time be living apart from the mother. So realizing, they provided for a reduction of the alimony at the rate of $5,000 per year for any such child, if he or she should reside apart from the mother’s home while that child was between the ages of twenty-one and twenty-five years. At the time the father took these three children, in August, 1950, they were eleven, twelve and fourteen years of age, respectively. How can the courts say that the monthly payment is to be reduced because the children are with their father when the agreement itself lists all the eventualities in which there is to be a reduction, and omits the one that has occurred? The agreement itself in terms destroys this defense since it provides for a reduction as to a child living apart from its mother when the child is between twenty-one and twenty-five years of age, only. It is not only the language but the sense of this agreement that, so long as the father is alive and the mother is alive and unmarried, and the children are alive and under twenty-one years of age, the monthly payment shall be $2,500 per month, no more and no less.

The first and best rule of construction of every contract, and the only rule we need here, is that, when the terms of a written contract are clear and unambiguous, the intent of the parties must be found therein (Hartigan v. Casualty Co. of America, 227 N. Y. 175, 179; Brainard v. New York Central R. R. Co., 242 N. Y. 125, 133). The applicability, to separation agreements, of that fundamental rule, has been affirmed by this court on several occasions (Galusha v. Galusha, 116 N. Y. 635, 646; Stoddard v. Stoddard, 227 N. Y. 13; Goldman v. Goldman, 282 N. Y. 296; Schmelzel v. Schmelzel, 287 N. Y. 21).

The trial court herein, conceding that the father could not lessen his debt by taking the children away from their mother, thought, however, that the separation agreement necessarily implied ‘ ‘ that if the arrangement for custody were later changed by a court, the obligation of the husband to pay the wife for the support of the child would be altered accordingly ”. The alimony was, accordingly, reduced from $2,500 to $1,250 per month beginning with the month after the entry of the habeas corpus order. But there are compelling reasons why such an implication and such a reduction is invalid. “We may not now imply a condition which the parties chose not to insert in their contract ” (Raner v. Goldberg, 244 N. Y. 438, 442). These parties, obviously represented by most painstaking attorneys, not only put this whole matter of money payments in such complete terms as to forbid any additions by implication, but went, even, to the length of adding this express language on the subject: “ Fifteenth: The parties have incorporated in this agreement their entire understanding. No oral statement or prior written matter extrinsic to this agreement concerning the rights, duties or obligations of either party hereto to the other shall have any force or effect. The parties are not relying on any representations other than those expressly set forth ”. Further on, in article Seventeenth, the parties declared that each had had independent legal advice by counsel of his or her own selection, that each fully understood the facts and his or her legal rights and liabilities, and that each, after receiving such legal advice, believed the agreement to be fair. Elsewhere in the writing, and serving as final evidence of the completeness and unalterability of the arrangement, we have an express provision that, if the agreement should be (as it afterward was) made part of any decree or judgment, such judgment or decree should nowise change the agreement and if such judgment or decree should be (as it later was) in a divorce action, it should contain no provision for alimony but should, if the law permitted, deny any jurisdiction of the court issuing such judgment or decree, to modify the same in any respect. If all that language does not operate to forbid the writing into this separation agreement of a new term, not stated or suggested in the paper, and inconsistent with its covenants, then the writing of agreements that speak for themselves is a lost art.

This is not the first time the New York courts have had to deal with unitary and unallocated support provisions for wife and children, in situations like this where the wife, for some reason not of her making, was not supporting the child or children and yet demanded the full alimony. In every such case until the present one the courts have enforced the contract as written and refused to do what the parties had failed to do, that is, apportion the total sum (Harwood v. Harwood, 182 Misc. 130, affd. 268 App. Div. 974; Cogswell v. Cogswell, 130 Misc. 541; and see discussion in Yates v. Yates, 183 Misc. 934). Particularly close is the Cogswell case, where the then Justice Rippey dealt with a husband’s promise to pay his wife $400 per month for the support of the wife “ and such children as shall be with her ’ ’. The couple had three children and all three were actually living with their father but the court found it impossible to reduce the husband’s obligation, since that suit, like the present one, was at law on an indivisible promise to pay, not subject to modification by a court. The most recent judicial pronouncement on the subject is by this court in Rehill v. Rehill (306 N. Y. 126, 133) wherein it was held that a $200 per month agreed payment to the wife “ for her support and maintenance and for the support and maintenance of their children, until she shall die or remarry ” could not be reduced by the husband or by the court simply because, after coming' of age, one of the daughters moved out of her mother’s residence. To the husband’s argument (in Rehill v. Rehill) that the parties intended that the full amount should be paid only so long as the wife actually supported both children in her home, this court gave the answer equally appropriate in the present case: “ The simple answer to this defense is that the separation agreement contains no such provision”. (P. 133.) Another recent decision of ours — Matter of Herzog (301 N. Y. 127, supra) — is helpful only insofar as it shows the opposite sort of situation since the Herzog agreement and trust indenture, read together, made a specific allocation of separate amounts for the wife and each child, and, further, said that when the children were in the custody of their father, payments for them, to the mother, should cease.

It seems almost unnecessary to add as a reason for overturning the decision below, that this separation agreement was “ ratified, confirmed and approved ” and that each of the parties was “ ordered to comply with the terms and conditions thereof ” in and by the Nevada decree (see similar Nevada decree language quoted in Schacht v. Schacht, 295 N. Y. 439, 442). Thus the terms became part of a judgment entitled to full faith and credit, and the past due payments became a “ debt of record ” (Barber v. Barber, 21 How. [U. S.] 582, 595; Lynde v. Lynde, 162 N. Y. 405, affd. 181 U. S. 183; Van Horn v. Van Horn, 196 App. Div. 472). The Nevada decree established rights which would be “ substantially impaired ” by the judgment entered herein (Schacht v. Schacht, supra, p. 442, and authorities cited; Goldberg v. Mayer, 243 App. Div. 477, affd. 270 N. Y. 660; Fry v. Fry, 304 N. Y. 889; Rehill v. Rehill, supra). In our recent Rehill decision, in a most similar situation, we denied power to the New York courts even to entertain a demand to reform the separation agreement approved by the Nevada court, since ‘ ‘ were we to do so we would in effect be 1 reforming ’ the Nevada decree as well as the separation agreement, which we may not do ”. (306 N. Y. 126, 135.) In the present case there is not even a request for reformation, but an attempt to reform by implying nonexistent terms. It would be all well enough to attempt, in such a situation, to work out the natural justice of the thing, were there no valid agreement and valid judgment confirming it. But natural justice and the stability of society requires us to compel the performance of contracts, and the enforcements of judgments, as they are written. Who knows whether this plaintiff would have signed the agreement if it had contained the term now sought to be implied, or whether the Nevada court would have approved it in such form?

In article Fifth of the separation agreement it is stated that the monthly payments “ are predicated upon the assumption and understanding that such payments are and will continue to be deductible from the husband’s gross income and will become the taxable income of the wife ”. That furnishes a little more evidence that, whatever position either party took later, they both considered, when signing the agreement, that the agreed upon monthly alimony was an indivisible payment to the wife, and taxable as such. As it turned out, the income tax authorities took a different view and permitted the husband to deduct only so much of the alimony as the tax officers thought paid for the wife’s sole benefit. Those later determinations cannot change the meaning of this contract. However, tax savings and refunds to plaintiff were brought about by the rulings that only part of the monthly payments were deductible by the husband and taxable to the wife. The resulting situation is covered by subdivision (a) of article Fifth of the separation agreement, which says that if it shall be 6 ‘ finally determined ’ ’ that any part of the support money payments are not a valid deduction from the husband’s taxable income, and if the wife shall receive tax benefits from that determination, she will pay to him the resulting differences in her Federal and State income taxes. Her failure to make those repayments to him is the subject matter of defendant’s counterclaim in this suit. We agree with the courts below that defendant is entitled to recover on that counterclaim in the amount allowed him below.

The judgment should be modified by adding a further award of damages to plaintiff of $6,250 for the months from April, 1951, to August, 1951, both inclusive, with appropriate interest, and, as so modified, affirmed, with costs to plaintiff.