Eleanor M. Burns, Plaintiff,
Andrew Mcintosh Burns, Defendant.
Francis C. Affronti, Esq. Attorney For Plaintiff Rochester,
M. Burns, Esq. Pro Se, Rochester, New York.
RICHARD A. DOLLINGER, J.
law still good law? In that regard, can a contractual
obligation to pay maintenance be enforced if the former wife
(receiving the maintenance) has now remarried and the
parties' "opting out" agreement does not
contain a cutoff upon remarriage?
answer to these inquiries carries the court into an
interaction between negotiated contractual rights in
"opting out" agreements and the dictates of the
seldom-cited, and all-but ignored, first sentence in Section
248 of the Domestic Relations Law, mandating that courts must
not enforce any orders which require a spouse to pay
maintenance after the payee remarries, and Section 236 of the
Domestic Relations Law which provides for the termination of
any order of maintenance "upon the death of either party
or upon the recipient's valid or invalid marriage."
DRL § 236 [B]  [a];  [c]).
instance, a couple negotiated a separation agreement which
provided for payment of maintenance by the husband on a
sliding scale. As his children aged out of child support, his
contribution for maintenance also declined. The maintenance
was to be paid until November 2020. The agreement did not
include any of the usual termination events - death of either
spouse or remarriage of the recipient. The agreement uses the
word "rehabilitative" as an adjective to the word
"maintenance."  With this agreement as a backdrop,
the wife remarried in December 2015. In April 2016, the
husband stopped paying maintenance. In response, the former
wife filed an order to show cause, seeking to hold the
husband in contempt, and a money judgment for the unpaid
maintenance and attorney fees.
husband's argument is simple: in the absence of an
agreement, maintenance ordered in a judgment of divorce
terminates upon the wife's remarriage. The wife argues
that the agreement at issue here is an "opting-out"
agreement, and therefore the couple chose to define
maintenance obligations outside the ambit of the Domestic
Relations Law. Under these circumstances, the wife argues
that when an "opting out" agreement is silent on
the cut-off of maintenance, the court can delve into the
parties' intentions to determine whether there was an
implicit promise that maintenance would continue until the
end of the term set forth in the agreement.
husband relies on statute to rebut the wife's claims. The
first sentence of Section 248 of the Domestic Relations Law
Where an action for divorce or for annulment or for a
declaration of the nullity of a void marriage is brought by a
spouse, and a final judgment of divorce or a final judgment
annulling the marriage or declaring its nullity has been
rendered, the court, by order upon the application of the
payor on notice, and on proof of the marriage of the payee
after such final judgment, must modify such final judgment
and any orders made with respect thereto by annulling the
provisions of such final judgment or orders, or of both,
directing payments of money for the support of the payee.
§ 248. In addition, the husband notes that the
"termination upon remarriage" language is echoed
twice in Section 236, Part B of the same statute. DRL §
236, B (1) (a) states that an award of maintenance shall
terminate "upon the payee's valid or invalid
marriage." Later, in the same section, the Legislature
wrote the same command: "post-divorce maintenance shall
terminate upon the payee's... marriage." DRL §
236, Part B, (6) (f) (3).
wife suggests that the Court of Appeals decision in Cohen
v. Cronin, 39 N.Y.2d 42 (1976), is the backdrop for a
continuing maintenance obligation. In that case, the question
was whether maintenance should be paid after the death of the
payor. The court held that the notion that payments of
maintenance after death of the payor was a
"well-accepted proposition, " citing Wilson v.
Hinman, 182 NY 408 (1905). In the latter case, the Court
of Appeals, more than century ago, held that the parties
could enter into an agreement that could bind the
husband's estate. But, the court in Wilson v.
Hinman carefully added, "an agreement of that
character would in no way contravene public policy, and the
performance of it would, doubtless, be enforceable by the
courts." Id. at 414. In short, at the dawn of
the 10th century, the Court of Appeals drew a line in the
marital sand: a couple could extend maintenance beyond the
"well- accepted proposition" of death, but not to
"contravene public policy." Id. at 414.
Applying that principle 70 years later in Cohen v.
Cronin, the Court of Appeals held that the express
language in the agreement - "until [the wife] shall
remarry or expire" without any limiting language -
obligated the husband's estate to make maintenance
payments. The court in Cohen v. Cronin applied the
"well-established proposition" that maintenance can
be paid after death of the payor. There was no public policy
barring the payment of maintenance after the husband's
death, and therefore, the couple could agree to extend
maintenance beyond that time.
wife's citation to Cohen v. Cronin ignores the
intervening Court of Appeals cases that did invoke a
"public policy" exception to payment of
maintenance. In the wake of Wilson v. Hinman, the
Court of Appeals waited to be asked whether some public
policy impacted the obligation to pay maintenance. It did not
have to wait long or look far. Fourteen years later, in
Schley v. Andrews, 225 NY 110 (1919), the court
highlighted Section 1771 of the Code of Civil Procedure as
meeting the public policy test:
If the defendant had obtained a divorce in this state, and
the judgment had awarded her $200 per month alimony, and she
had again married, as she has here done, and the plaintiff
had made a motion to be relieved from such payment, the court
would have had to grant the motion. The statute so provides
(Code Civil Procedure, sec. 1771), and while this statute has
no direct bearing on the question being considered, it
indicates by its enactment a legislative intent that as a
matter of public policy a wife who has a husband with whom
she is living should be supported by him and not by one from
whom she has been divorced.
Id. at 114. During the next 13 years, lower courts
agreed. In Dumproff v. Dumproff, 138 Misc. 298 (Sup.
Ct. New York Cty. 1930), the court reaffirmed the underlying