118 NY 7 (1889)
While divorce was still uncommon during the Gilded Age, changing social conditions and attitudes led to the growing willingness of couples to end their failing marriages, often creating financial complications and increased private litigation in the state courts.
C. Baldwin Fosdick and Jennie Fosdick were married in 1878 and had two children. In 1883, “unhappy differences having arisen between them, they agreed to live separately,” a development which, according to the New York Times, “created considerable talk in Newport and New-York society.”[1]
Under the parties’ separation agreement, the husband and his father agreed to pay $2,500 a year to a trustee, Bainbridge Clark, for the support and maintenance of the wife and children. The agreement custody of the children to the wife and visitation rights to the husband and his parents, and provided that the annual payments were to be made until the wife’s death or remarriage.
Following the separation agreement, the wife moved to Rhode Island and after residing there for a year brought a divorce action in that state. Mr. Fosdick appeared in the divorce action. The wife was granted a divorce by the Rhode Island court in September 1885, at which time the husband stopped making payments under the separation agreement. No issues of alimony or support were raised or considered in the Rhode Island divorce action.
The trustee named in the separation agreement sued Mr. Fosdick for the payments due under the agreement. The City Court of New York ruled in the trustee’s favor, and the judgment was affirmed by the General Term of the Court of Common Pleas of the City of New York. On appeal to the second division of the Court of Appeals (formed temporarily for the purpose of reducing the high court’s large backlog), Mr. Fosdick argued that the Rhode Island divorce invalidated the terms of the separation agreement.
Judge Joseph Potter’s majority opinion considered first whether a separation agreement between spouses was invalid as against public policy. After reviewing case law dating back to the English courts, Judge Potter found that a separation agreement did not violate public policy where it was not made in contemplation of a future “possible” separation but instead was made to address a separation that had already taken place or, as in the Fosdicks’ case, was about to occur “immediately.”
Turning to whether the Rhode Island divorce nullified the separation agreement, the court held that agreement remained valid “and has not been in anywise rendered ineffectual by the decree of absolute divorce granted to the wife.” The court noted that the divorce judgment did not address or change any financial rights between the parties or any rights relating to custody of the children. Nor had there been any breach of the legal duties and obligations of husbands and wives, such as the commission of adultery.
In dissent, Chief Judge David Follett argued that the separation agreement “arose out of the rights and liabilities of the marital relation,” and “rested on the presumption that the relation and those rights and liabilities would continue.” When the judgment of divorce dissolved that marital relation, it “destroyed the contract.” In Chief Judge Follet’s view, the husband had struck a bargain by which he agreed to support his wife while she remained his wife. Once she obtained a divorce and ceased to be his wife he could no longer be held to the separation agreement. Instead, the parties had entered into a new “status” in which the state now had an “interest,” “and public policy forbids that its obligations shall be made the subject of bargain and sale, like rights in property.”
Chief Judge Follett was concerned about the implications of the court’s holding for an “institution which is the recognized foundation of civilization.” He offered a hypothetical scenario where a husband and wife separated and contracted to live apart with the husband agreeing to pay for the wife’s support. “Subsequently, the wife lives in open adultery . . . for which misconduct the husband obtain[s] an absolute divorce. Under the doctrine of [the majority opinion], it seems to me that the husband, notwithstanding the divorce, would be compelled to continue the payment for the support of the woman and her paramour.” Chief Judge Follet was not comforted by the argument that such consequences could be prevented by the terms of the parties’ contract. “I think consequences so pregnant with evil to the marital relation ought not to be left to the chance of contract.”
[1] “A Novel Case Decided. The Fosdick Separation in the Court of Appeals,” New York Times, Dec. 11, 1889.