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Gaines v. Jacobsen

Supreme Court of New York, Appellate Division

February 16, 1954

FRANCES GAINES, Respondent,
v.
OWEN P. JACOBSEN, Appellant.

Page 326

APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered June 26, 1953, in New York County, upon a decision of the court at a Trial Term (DINEEN, J.), without a jury.

COUNSEL

Barent Ten Eyck of counsel (McNutt & Nash, attorneys), for appellant.

Ira M. Millstein of counsel (Jacob F. Raskin with him on the brief; Weil, Gotshal & Manges, attorneys), for respondent.

BREITEL, J.

The question in this case is whether a former wife is entitled to a resumption of periodic payments for her support and to the maintenance of life insurance for her benefit under a separation agreement. The agreement provided that in the event of her remarriage the benefits would cease. She remarried but the remarriage was annulled, after it had been determined that her second husband had not been validly divorced from his first wife.

The case comes to this court after trial in which the wife recovered judgment in her favor. The husband appeals.

The judgment, in our view, should be reversed on the ground that although the wife's remarriage was annulled and is therefore null and void from its inception for many purposes, it was nevertheless, for the purpose of construing the separation agreement under which the wife claims, sufficient to terminate the obligations of the husband under it.

The parties were married in Connecticut in 1927, had two children, and lived together in Connecticut until February, 1944. In March of that year they entered into the separation agreement which is the subject of this action. It provided for the husband to support the wife and the children, and to maintain certain life insurance for the benefit of the wife. There is no issue in the case concerning the children, toward whom the husband has faithfully maintained his obligations.

Page 327

In May, 1944, the wife divorced the husband in Nevada and the financial arrangements were those provided in the agreement executed earlier in the year. In August, 1944, the husband had remarried.

Under the agreement it was provided that the periodic payments and the life insurance for the benefit of the wife should continue 'until she shall remarry'.

In 1947, the wife, now divorced, met one George W. Harragan, a married man, who was the brother of the lawyer who had drafted, on her behalf, the separation agreement.

In March or April, 1948, on his brother's advice, Harragan went to Nevada to establish a 'residence' for a divorce action against his then wife, Rosalind; but after spending six weeks or two months there he returned to New York. In June, 1948, he started his Nevada divorce action on the ground of ...


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