Farkas v. Farkas

Memorandum by the Court. Judgment appealed from affirmed, without costs or disbursements to either party. The parties hereto were married October 13, 1962. Prior to such marriage they had entered into a prenuptial agreement dated September 27, 1962. Shortly after the marriage the parties separated and by a separation agreement dated November 17, 1962 the defendant husband agreed to pay the plaintiff the sum of $1,250 per month for her support and maintenance. On or about January 25, 1963 the parties entered into a so-called reconciliation agreement. Plaintiff contends that thereafter the parties resumed their marital relationship as husband and wife, a contention which defendant disputes. The trial court, after a trial of the issues, concluded that the evidence did not support the plaintiff’s claim and held the separation agreement of November 17, 1962 still effective. We are all agreed that mere cohabitation and sexual intercourse between the parties, following upon the execution of the separation agreement, would not vitiate such agreement. There must be proof of an intention to abandon the separation agreement. There is a division of opinion as to whether there was such proof. In our view there was not. There was ample evidence in the record which warranted the conclusion reached by the trial court as to the validity of the separation .agreement. Following upon the separation and prior to the execution of the reconciliation agreement the plaintiff moved into a hotel. During that time there was testimony of sexual intercourse between the parties and this continued after the execution of the reconciliation agreement. Following upon the execution of such agreement the plaintiff continued to reside in the hotel until about March, 1963 and paid the rent therefor out of the $1,250 per month which she continued to receive from the defendant. Defendant also continued to maintain an apartment in Sutton Place. On or about March, 1963 the plaintiff moved into an apartment at 1192 Park Avenue on a three-month sublease signed by defendant. Bach paid half of the rent but meanwhile defendant continued to maintain a separate apartment. By plaintiff’s own testimony defendant did not spend every night in the Park Avenue apartment, and she in fact served as hostess on at least one occasion for a dinner party given by defendant at his Sutton Place apartment. It should be noted that during the entire interval the plaintiff continued to receive the sum of $1,250 per month. There was credible testimony that plaintiff, as a condition to resumption of full marital relationship, demanded a revision of the antenuptial agreement and that the. defendant refused to consent thereto. Since intention is a question of fact to be resolved not only from any available documentary evidence, but the acts and expression of the parties as well, the trial court was warranted in concluding as it did that the evidence failed to support plaintiff’s contention.