Nopper v. Nopper

¶1concurs in part and dissents in part in the following memorandum. Kane, J. (concurring in part and dissenting in part). Although I agree that disbursements were erroneously assessed against the defendant, I would additionally conclude that the entire judgment should be reversed. Plaintiffs action is one in contract for the alleged breach of a separation agreement. While such agreements are subject to ordinary principles of construction and interpretation (cf. Tamas v Tamas, 47 AD2d 686; Matter of Baker v Baker, 33 AD2d 812), the quoted language of the instant contract makes it unambiguously plain that its terms were not to survive a subsequent divorce. Wholly apart from defendant’s inability to collaterally attack a conflicting provision contained in the divorce decree, the trial court should have recognized the divorce court’s patent lack of jurisdictional authority to make any new agreement between the parties (see Stoddard v Stoddard, 227 NY 13; Johnson v Johnson, 206 NY 561). It should have given effect to the agreement as written and dismissed plaintiffs complaint. She may, of course, pursue any remedies which are available under the Domestic Relations Law, but the agreement can no longer supply her with a basis for contractual relief.