Hunt v. Pallm

Denman, P. J., and Pine, J. (dissenting).

We respectfully dissent. We would reverse and grant the motion of plaintiff for a money judgment against defendant, her ex-husband, based upon the terms of their property settlement agreement that was incorporated but not merged in the parties’ judgment of divorce. We agree with plaintiff that the terms of that agreement required defendant to continue making monthly payments of principal and interest on a second mortgage directly to plaintiff even after plaintiff’s early discharge of that mortgage. We conclude that the language in the agreement *965that, "[i]n the event of the sale of the house, the husband will still be responsible for the payment of the second mortgage directly to the wife” is dispositive. We further conclude that that language evidences the intent of the parties that defendant continue making mortgage payments even if the house were sold, i.e., if the mortgage were discharged early. Here, those mortgage payments included principal and interest. (Appeal from Order of Supreme Court, Erie County, Sedita, Jr., J.—Enforcement Proceeding.) Present—Denman, P. J., Green, Pine, Callahan and Davis, JJ.