Kuniholm v. Kuniholm ( 1961 )

Bastow, J. (dissenting).

Plaintiff appeals from an order denying her motion for partial summary judgment on the first cause of action of the complaint to recover monthly installments of support payments for herself and her two children. The motion should have been granted.

The parties to the action, now divorced, entered into a separation agreement in May, 1957. Thereby custody of the two infant children—then 18 and 14 years of age, respectively — was given to the plaintiff wife.

Pertinent here are two provisions of the agreement. The first was that the children should not be removed ‘1 permanently from the continental United States * * * without .the written consent of the husband.” Secondly, the latter agreed to pay $120 monthly for the benefit of each child until each reached 21 years or married and necessary medical and hospital expenses. In addition the husband promised to pay tuition and certain other expenses for the first four years “ [I]f the aforesaid infants apply for and are accepted for academic courses in any college ”. Upon the infant reaching 21 during the four-year period the obligation was reduced to the payment of the monthly benefit and medical benefit to the end of the fourth college year “ except if such children are accepted in a U. S. service academy and will thereby be self-sustaining, no tuition or support shall be paid by the husband during such periods.”

The defendant admits nonpayment of moneys due under the agreement but contends triable issues are presented in that the wife breached the agreement (1) by removing the daughter from this country to Iran without his consent; (2) by depriving him of specific visitation rights by said removal; and (3) by interfering with .the education of their son by persuading him to attend Dartmouth College after he had been accepted at West Point.

There is no substance to the first two alleged breaches of the agreement. In November, 1959, some eight month's before the daughter reached the age of 21, the wife was assigned by her employer for a two-year tour of duty in Iran. Months before she wrote defendant asking his permission to have the daughter accompany her. The letters were ignored. The daughter submits an affidavit from which it appears that shortly before sailing she visited her father and he made no objection to her going. It is apparent that in the light of defendant’s conduct his present contentions are mere after-thoughts submitted to avoid making any support payments. Eespondent’s contention that the word ‘1 permanently ’ ’ as used in the agreement as to removal of the children might be found to mean ‘ ‘ temporarily ’ ’ is equally fallacious. There was no permanent removal of the daughter who was approaching her 21st birthday and in any event respondent by his course of conduct should be estopped from asserting his sham defenses on this issue.

It appears that the son, while residing temporarily with the father, made application to be admitted to the United States Military Academy, United States Naval Academy, Brown, Trinity, Williams and Dartmouth Colleges. He was subsequently notified by West Point, Brown, Trinity and Dartmouth that he would be admitted for the term beginning in September, 1960. The son decided to enter Dartmouth whereupon, according to his affidavit, which is undenied, the father ordered him to leave his house in the near future, never to return, and that he should consider himself “ disinherited ”.

The respondent contends that he has no further financial obligations under the agreement because (1) the son was “ accepted ” by the Military Academy and (2) the wife “ interfered ” with the son’s application for and acceptance at the academy. As to the latter ground, reliance is placed upon two letters written by the mother to the son while he was residing with the father. These present no triable issue on the theory of interference or breach of the agreement. In substance the mother, who had been given custody of the child, advised him in writing, and correctly, of his legal rights under the terms of the agreement.

The lack of substance to this defense is demonstrated by respondent’s reliance upon Haskell v. Haskell (201 App. Div. 414). Therein it appeared that the separation agreement provided (p. 414) that the child should be “ supported, educated and maintained by and under the sole direction ’ ’ of the husband. It was held that the latter was not liable for necessaries furnished the son where it was proved that the mother upheld the son in disobeying the father by refusing to attend school. It is apparent herein that the respondent was determined that his son should enter West Point because thereby he would be relieved of the financial obligation of making any payments for support, tuition or other college expenses. Thus, in his affidavit he complains that Dartmouth “ was far beyond anything that I could afford ’ ’ and ‘ ‘ was the most expensive school in the Ivy League. ’ ’

There is no triable issue presented. Indeed, upon a trial if no additional proof is submitted a directed verdict in favor of the wife would be required because by no rational process could the triers of the fact find a verdict in favor of the husband.

Equally unsound is respondent’s attempt to construe the agreement to mean that the son’s “ acceptance ” at West Point, without his subsequent attendance thereat, absolves him from his obligation to pay college education expenses at Dartmouth. A reading of the entire provision will permit of no such construction. The agreement was made when the son was 14 years of age. It could not have been the intent of the parties that the son as he approached college age should have no choice in the selection of an institution. His affidavit shows that after careful consideration he rejected West Point and decided because of his desire ‘ ‘ to study the humanities, and my ambition to become a novelist, possibly a college teacher ’ ’ to enter a liberal arts college. The defendant, in the meantime, pursued an unaltered course that would terminate his obligations to pay any expenses for a college education. This is best shown by the allegation in his answer that he “ obtained for [the son] a Congressional appointment to West Point, which is a U. S. Service Academy.”

Respondent has failed to show a triable issue upon any phase of the first cause of action. The order should be reversed and the motion granted.

Stevens and Steuer, JJ., concur with McNally, J. P.; Bastow, J., dissents and votes to reverse in opinion, in which Eager, J., concurs.

Order entered on June 19,1961, denying plaintiff’s motion for partial summary judgment, affirmed with $20 costs and disbursements to the respondent.