MARGARITE AUTEN, Appellant, v. HAROLD AUTEN, Respondent.
Court of Appeals of New York
308 N.Y. 155; 124 N.E.2d 99; 1954 N.Y. LEXIS 930; 50 A.L.R.2d 246
Argued October 22, 1954.
December 31, 1954, decided
PRIOR HISTORY: [***1]
Auten v. Auten, 281 App. Div. 740, reverd.
APPEAL from a judgment, entered December 1, 1953, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which (1) affirmed an order of the Supreme Court at Special Term (SCHREIBER, J.), entered in New York County, grantin
g a motion by defendant for summary judgment dismissing the complaint and (2) granted leave to rve an amended complaint. (See 306 N.Y. 752.)
DISPOSITION: LEWIS, Ch. J., CONWAY, DESMOND, DYE, FROESSEL and VAN VOORHIS, JJ., concur.
Judgments reverd, etc.
HEADNOTES: Conflict of laws - husband and wife - repudiation of paration agreement - (1) wife and husband entered into paration agreement in New York providing that husband pay stated amount monthly for support of wife and children, that neither should sue in any action relating to paration, and that wife should not sue in any jurisdiction by reason of prior Mexican divorce; thereafter wife sued for paration in England; action herein by wife to recover arrears due her under agreement; husband's motion for summary judgment bad on defen that wife's paration action in England operated as repudiation of
agreement, [***2] denied; law of England applicable and thereunder issue exists as to effect of commencement of paration action on paration agreement - (2) under "grouping of contacts" theory of conflict of laws, English law would be applied - (3) parties could not have expected that law other than English law would be applied - (4) moreover, under rule that matters of performance and breach are governed by law of place of performance, English law would control - (5) husband's contention that wife's commencement of English action amounted to breach of her covenant not to sue also governed by English law.
1. Defendant husband, who had procured a Mexican divorce, and plaintiff wife entered into a paration agreement in 1933 in New York providing that the husband pay a stated amount monthly to a New York trustee for the account of his wife, for the support of herlf and their children; that neither should sue "in any action relating to their paration", and that the wife should not "cau any complaint to be lodged against * * * [the husband], in any jurisdiction, by reason of the said alleged divorce". Immediately after the signing of the agreement, the wife returned to England, where she [***3] has si
nce lived with the children. In 1934, the wife filed a petition for paration in an English court, but the action never proceeded to trial. In 1947, the wife brought the prent action to recover arrears allegedly due her under the agreement. Since the law of England must be applied, and since, at the least, an issue exists whether the courts of that country treat the commencement of a paration action as a repudiation of an earlier-made paration agreement, the husband's motion for summary judgment, bad on his defen of an alleged repudiation by the wife of the paration agreement, should not have been granted.
2. The "center of gravity" or "grouping of contacts" theory of the conflict of laws emphasizes the law of the place which has the most significant contacts with the matter in dispute. Examination of the respective contacts with New York and England indicates that the English law should be applied to determine the effect to be given the wife's institution of the paration suit in England. The parties were married in England, had children there and lived there as a family for fourteen years. The husband allegedly had willfully derted and abandoned the [***4] wife and children in England, and was in this
country on a temporary visa when the agreement was signed. The sole purpo of the wife's trip to New York was to arrange for defendant to agree to support his family, and she returned to England immediately after the agreement was executed. The agreement, effecting a paration between British subjects, was drawn with an understanding that the wife and children would live in England. The only relation of this state with the matter is that it is the place where the agreement was made and where the trustee had his office.
3. The parties could not have expected or believed that any law other than that of England would govern the effect of the wife's institution of a paration action.
4. If the rule that matters of performance and breach are governed by the law of the place of performance should be applied, the law of England would still control.
5. The husband's contention that plaintiff's commencement of the English action amounted to a material breach of his wife's covenant not to sue, barring recovery on the agreement, is also governed by English law.
COUNSEL: Michael Alexander, Bernard B. Smith and Leonard H. Steibel [***5] for appellant. I. The effect of the English paration action upon the paration agreement must be determined in accordance with the rule of law applied by the English courts. ( Rennie v. Rennie, 287 N.Y. 86; Lynde v. Lynde, 41 App. Div. 280, 162 N.Y. 405, 181 U.S. 183; Swift & Co. v. Bankers Trust Co., 280 N.Y. 135; Myles v. Cuba R.R. Co., 182 Misc. 169; Lann v. United States Steel Works Corp., 166 Misc. 465; Matter of Palmer, 192 Misc. 385, 275 App. Div. 792; Graham v. First Nat. Bank of Norfolk, 84 N.Y. 393; Hutchinson v. Ross, 262 N.Y. 381.) II. Even assuming, arguendo, that the effect of the English paration action upon the paration agreement must be determined in accordance with the rule of law applied by the courts of New York, the judgment of the Appellate Division affirming Special Term cannot be sustained. ( Woods v. Bard, 285 N.Y. 11; Krell v. Krell, 192 Misc. 1; Clark v. Kirby, 243 N.Y. 295; Dimick v. Dimick, 230 App. Div. 99; Van Horn v. Van Horn, 196 App. Div. 472; Chamberlain v. Cuming, 37 Misc. 815; Estin v. Estin, 296 N.Y. 308, 334 U.S. 541; [***6] Gifford v. Corrigan, 117 N.Y. 257; Rosmarin v. Rosmarin, 238 App. Div. 798; De Brauwere v. De Brauwere, 203 N.Y. 460; Patino v. Patino, 195 Misc. 887, 278 App. Div. 756, 278 App. Div. 921.)
