Harwood v. Harwood

Hecht, J. (dissenting).

The provisions of paragraphs a, b, c and d of subdivision 3 of article Fifth of the separation agreement indicate clearly that defendant assumed two separate and distinct undertakings during the period between his son’s fourteenth and twenty-first birthdays, viz., (1) an undertaking to pay $200 per month for the care, maintenance, support and education of the son, and (2) an undertaking to pay $250 per month for the maintenance and support of the plaintiff. It is evident from a reading of the agreement as a whole that the sole purpose of and consideration for the defendant’s promise to pay $200 per month on account of the son was the contemplated care, maintenance, support and education of the son by the plaintiff, to whom custody was granted. The induction of the son into the United States Army divested the plaintiff of custody and control of the son and resulted in the taking over of the custody, control, care, support, maintenance and education of the son by the army. The effect of the son’s induction into the army was to bring about a complete failure of the consideration for defendant’s undertaking to pay $200 per month for the son’s support for the period he remained in the army.

The plaintiff’s contention that the defendant remained liable to continue paying the $200 per month and that these sums *137could be accumulated for the support, maintenance and education of the son after his discharge from the army, and even after his majority, appears to be without merit. Fairly construed, the separation agreement requires the monthly payments made by the defendant to be used for the current support, care and education of the son, not for his support after he reaches his majority or at some other future time.

The nature of the defendant’s obligation is in no way altered even if, as plaintiff argues, the plaintiff, as to the $200 payments, is suing as a trustee for the son. Furthermore, the trustee' theory appears to be inconsistent with the well-settled principle that a wife who violates material custody provisions of a separation agreement between herself and her husband may not recover from the latter payments which he agreed to make for the support of the children. (Duryea v. Bliven, 122 N. Y. 567; Muth v. Wuest, 76 App. Div. 332; notes, 105 A. L. R. 901.)

The judgment and order granting judgment on the pleadings should be reversed and motion denied, and defendant’s motion granted to the extent of directing judgment for $250 in favor of plaintiff.

McLaughlin, J., concurs with Shientag, J.; Hecht, J., dissents in opinion.

Judgment and orders affirmed.