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Flicker v. Chenitz

Decided: April 21, 1959.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.


This is the question: is the provision in a property settlement agreement between husband and wife, made during the pendency of a divorce proceeding, conditioned upon approval and duly approved by the court and embodied in the divorce decree in favor of the wife, whereby the husband agreed to pay his wife the sum of $140 per week "during the lifetime of the wife * * * in lieu of all support, alimony and maintenance for" herself and their two minor children, enforceable against the husband's estate upon his death, or did this obligation thereupon terminate? According to counsel and the trial court, the precise question has never before been decided in this State.


The basic facts are not in dispute. The plaintiff, Hilda Flicker, and Sol J. Flicker were married to each other on August 6, 1936, and two children, Jon and Andrew, were born of the marriage. On September 17, 1946 plaintiff instituted divorce proceedings based upon her husband's desertion. On December 30, 1946, while the divorce suit was pending in the then Court of Chancery of this State, they entered into an agreement which is the subject of this litigation. It recited that they desired to

"settle, adjust and compromise all questions concerning any and all claims which either has asserted or may have against the other, and to settle their property rights, and agree on terms for the maintenance and support of the wife and the custody of said children as well, as well as all matters and questions effecting (sic) their marital and other legal relations, * * *."

Paragraphs 2 to 7, inclusive, and paragraph 11 pertain to conveyances and releases of interests in various parcels of real estate, to the assumption of responsibilities in connection therewith, and to the division of personal property. Other parts of the agreement relate to custody of the children (then aged eight and five), rights of visitation, and other details with which we are not concerned. The pertinent provisions around which this litigation revolves are these:

"1. Commencing with the date of the execution of this agreement, and during the lifetime of the wife, the husband shall pay to the wife, in lieu of all support, alimony and maintenance for the wife and the said children, the sum of One Hundred Forty Dollars ($140.00) per week * * *."

"15. This agreement shall be void and of no effect unless it be approved as suitable, fair and adequate by a decree of the Court of Chancery of New Jersey in the aforementioned pending suit, and both parties hereto consent to an order or decree of approval by the court. Both parties intend that this agreement shall survive any decree for divorce and be binding and conclusive on the parties."

"17. * * * it being the intention of the parties that henceforth there shall be between them only such rights and obligations as are herein provided for." (Italics supplied)

The decree nisi entered on January 17, 1947 ordered the payment of $140 per week for support and maintenance, and the final decree was entered on April 18, 1947. With specific reference to the agreement, the decree nisi recited:

"* * * and the court having considered the same, the position and circumstances of the parties, and being satisfied that the proposed agreement is fair, adequate and equitable, and that its provisions will be of greater benefit and advantage to the petitioner than would a provision by way of alimony, and are suitable and adequate for her support and maintenance, it is further ORDERED, ADJUDGED AND DECREED that the said agreement be and the same is hereby approved, subject, however, to the continuing jurisdiction of this court to make subsequent award of alimony to petitioner in case of her necessity."

Both parties performed the terms of the agreement, and the husband paid the stipulated weekly sum until his death on March 29, 1958. His will was duly probated. The defendants, executors thereunder, have refused plaintiff's demand

for continuance of the weekly payments, asserting that the obligation terminated upon the death of the testator. The will made no provision for the plaintiff or the children, who are still minors in the plaintiff's custody and said to be partly physically disabled. While evidence of their disability does not appear in the record, the fact is stated in plaintiff's brief and not denied in defendants'.

Plaintiff brought this suit in the Chancery Division for construction of the agreement. She seeks a judgment for the moneys due thereunder from the date of her former husband's death, as well as a judicial determination that the assumed obligation will bind the estate for the duration of her lifetime. The action is grounded upon the voluntary, court-approved agreement between plaintiff and her former husband. Her position is that the provision for the weekly payment did not merge into the decree, but that it subsists as an independent obligation during her lifetime and is enforceable against her former husband's estate. Defendants in their answer assert that the agreement merged into the decree nisi , thus becoming subject to the incidents of alimony, and that, therefore, the obligation terminated upon the death of the testator.

Both parties moved for summary judgment in their favor. The defendants also moved for modification of the decree nisi so as to provide expressly that the obligation terminated upon Dr. Flicker's death. The court sustained the defendants' contentions and further held that

"* * * the essence of the agreement was the discharge of the marital obligation to pay alimony to which the presumably equal division of the jointly owned assets was adjectival. In these circumstances, the agreement is unenforceable in this State whether or not it be found to have merged in the decree nisi."

While it therefore became

"unnecessary to pass upon the question of whether or not the document reflects a mutual intention of the parties that the obligation to provide support should survive the husband,"

the trial judge concluded

"that evidence of such intention does not appear in the agreement either expressly or by necessary implication."

Accordingly, plaintiff's motion for summary judgment was denied, and defendants' motion for summary judgment in their favor was granted. Defendants' motion for modification of the decree nisi was denied because "the relief sought would serve no useful purpose." From the judgment entered dismissing her complaint with prejudice, plaintiff appeals.


Before addressing ourselves to the central problems concerning the enforceability of the agreement and the applicability of the rule that alimony terminates with the husband's death, we deem it appropriate first to dispose of the defendants' point that the agreement does not expressly or by necessary implication provide that payments were to continue after Dr. Flicker's death. As noted, the trial judge found it unnecessary to decide this question, but he nonetheless shared the view that the document reflects no intention to bind the husband's estate. We do not agree.

The emphasis of defendants' argument is that the provision in the instrument that "the husband shall pay * * * during the lifetime of the wife" does not of itself sufficiently bespeak an intention that the obligation would survive his death. But there is no provision in the agreement that would require payments to cease upon Dr. Flicker's death. There is nothing in the agreement to negative the existence of an intent that "during the lifetime of the wife" should mean what it says -- as long as she lives and not a shorter period. Significantly, the agreement does not say payments will be forthcoming "during the joint lives of the parties." And while there is nothing in the agreement specifically reciting that it is binding on "his executors," there is a

presumption of law, in the absence of express words, that parties to a contract intend to bind not only themselves but their legal representatives as well. See, e.g., Kernochan v. Murray , 111 N.Y. 306, 18 N.E. 868, 2 L.R.A. 183 (Ct. App. 1888); Barnes v. Klug , 129 App. Div. 192, 113 N.Y.S. 325, 328 (1 st Dept. 1908); 17 C.J.S. Contracts ยง 520, p. 1144. Although that presumption is not operative in the construction of contracts which are of such a nature as to admit only of a personal performance, many of the cases discussed infra and others have held, expressly or impliedly, that the husband's promise to pay support to his wife for a term such as "during her life" will charge his estate without an explicit provision to that effect. McCubbin v. Patterson , 16 Md. 179 (Ct. App. 1860); Barnes v. Klug, supra; Dickey v. Dickey , 154 Md. 675, 141 A. 387, 58 A.L.R. 634 (Ct. App. 1928); Farrington v. Boston Safe Deposit & Trust Co. , 280 Mass. 121, 181 N.E. 779 (Sup. Jud. Ct. 1932) (language was in the decree); Jennings v. First Nat'l. Bank , 116 W. Va. 409, 180 S.E. 772, 100 A.L.R. 404 (Sup. Ct. App. 1935); In re Wise's Estate , 99 Colo. 562, 64 P. 2 d 594 (Sup. Ct. 1937) (contract held not personal but in furtherance of his legal and moral duty); In re Kuchenbecker's Estate , 4 Ill. App. 2 d 314, 124 N.E. 2 d 52 (App. Ct. 1955); ...

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