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Burns v. Burns

Supreme Court, Monroe County

May 26, 2017

Eleanor M. Burns, Plaintiff,
v.
Andrew Mcintosh Burns, Defendant.

          Francis C. Affronti, Esq. Attorney For Plaintiff Rochester, New York.

          Andrew M. Burns, Esq. Pro Se, Rochester, New York.

          RICHARD A. DOLLINGER, J.

         Is old 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?

         The 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] [1] [a]; [6] [c]).

         In this 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." [1] 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.

         The 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.

         The husband relies on statute to rebut the wife's claims. The first sentence of Section 248 of the Domestic Relations Law provides:

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.

         DRL § 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).

         The 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.

         The 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 ...


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