Kyff v. Kyff

Townley, J.

Plaintiff and defendant entered into a separation agreement on April 12, 1930. The agreement provided for the custody of the children and also provided that the husband should pay to the wife $3,000 in cash on the execution of the agreement. Paragraph eighth of the agreement provides that the “ wife agrees to accept said payment hereinbefore provided, in full satisfaction for all claim for support and maintenance of every kind.” Thereafter a pending separation action was discontinued and the agreement was carried out.

On September 29, 1939, plaintiff wife brought an action for absolute divorce. The action was not contested on the merits but there was a denial of any right to support or to the custody of the children. No motion was made for temporary alimony or counsel fees. It appears that the wife earns ten dollars a week wages and has earned it for some ten years. After trial, an interlocutory judgment for the plaintiff was granted. The judgment contained the provision that the “ defendant shall pay to the plaintiff the sum of $7.00 per week as and for her support.” This part of the judgment is appealed from.

In Galusha v. Galusha (116 N. Y. 635) the Court of Appeals held that in an action brought by the wife for divorce on the ground of adultery, the court has no power to set aside a contract between the parties without the consent of both parties and no power to make an additional allowance for the support of the wife beyond the amount agreed upon by the parties where the amount agreed upon is not insufficient for the support of the wife. In later litigation between the parties, Galusha v. Galusha (138 N. Y. 272), the Court of Appeals said that its decision in the divorce action was conclusive authority for the proposition that so long as the separation agreement remains unimpeached, it must be the measure of the allowance for the support of the plaintiff which the defendant shall pay. In Goldman v. Goldman (282 N. Y. 296, 301) the court restated its position, saying: “ Nothing said or decided by this court in any subsequent cases has weakened the authority of the two Galusha decisions. * * * The Civil Practice Act, sections 1155 and 1170, confers upon the court the power in an action for divorce brought by a wife, to fix the amount which the husband shall pay for the support of his wife and children and to require the husband to pay the amount so fixed. In article 70 of the Civil Practice Act (§§ 1171, 1171-a, 1171-b and 1172) the Legislature has made provisions of drastic nature for the enforcement by the courts of an order or judgment of the court directing the husband to pay the amount fixed by the court. Husband and wife may by contract agree upon the amount which the husband shall pay in satisfaction of his marital obligation for support of his wife and children, and the court will not ‘ interfere ’ with such a contract. It may be enforced like other contracts and, so long as the contract remains unimpeached, the court will not compel the husband to pay to the wife for her support a sum greater than the wife agreed to accept, at least where such sum is not plainly insufficient. So the court decided in the Galusha cases.”

In the case at bar there is nothing to show that the original $3,000 paid by the defendant husband was not a generous settlement and one which fully compensated the plaintiff. That being so, there is no justification shown for the provision in the interlocutory judgment appealed from. The court may, as it did in Goldman v. Goldman (supra), limit the extent to which it will grant enforcement of a separation agreement by incorporating its provisions in the decree in a matrimonial action. It will not, however, in the absence of fraud compel defendant to pay more than plaintiff has agreed to accept.

The judgment should be modified by eliminating therefrom the provision with respect to payments for support of the plaintiff, and as modified, affirmed, without costs.

Martin, P. J., O’Malley and Glennon, JJ., concur; Untermyer, J., dissents.