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Burke v. Burke

Court of Chancery of Delaware, New Castle County

January 28, 1952


Page 52

[32 Del.Ch. 321] Arthur G. Logan and Stephen E. Hamilton, Jr., Wilmington, for plaintiff.

John P. Sinclair (of Berl, Potter & Anderson), Wilmington, for defendant.

This is an action for specific performance of a separation[32 Del.Ch. 322] agreement. The case was before the court upon complaint and motion to dismiss.

BRAMHALL, Vice Chancellor.

The complaint shows that on September 29, 1949, the plaintiff and defendant, who were then married but were at that time living separate and apart, entered into a separation agreement in this state relative to the support of the wife and for custody, maintenance and education of the minor child living with the wife. The agreement recites that the parties were contemplating divorce proceedings, and provides that the wife shall have the custody of the minor child; that the defendant shall pay to plaintiff for support and maintenance of herself and the minor child the sum of $75 per month, which sum, however, shall be subject to renegotiation at the end of each six months period, but shall not be reduced below $75 per month, with the further proviso that in the event of any disagreement between the parties with reference thereto the plaintiff shall be entitled to appropriate legal proceedings and in this respect shall not be limited or restricted by the agreement; that defendant shall furnish the minor child of the parties with two complete clothing outfits each year; that the defendant shall provide for the proper education of the minor child (both preparatory and higher education) in such institution or institutions as plaintiff may determine; that the defendant shall assume certain obligations therein set forth; that defendant shall assign two insurance policies, one to the plaintiff and one to the minor child; that defendant shall pay all unusual medical and dental bills of the plaintiff and all medical and dental bills of the minor child as long as he is not self-supporting; that the defendant shall deliver the insurance policies to plaintiff; that plaintiff shall have one-half of a certain rent claim when collected; that a certain savings account shall be transferred to the minor child; that the Milford property shall be sold and the proceeds thereof, after the payment of taxes and certain indebtedness, shall be equally divided between plaintiff and defendant; that the parties shall execute all papers necessary to effectuate the [32 Del.Ch. 323] sale of this property; that defendant shall have the right to visit the minor child and the minor child shall be permitted by the mother to visit defendant at reasonable periods; that the plaintiff releases the defendant, other than as provided in the agreement, from all claims or demands which she may have, then or in the future, against the defendant.

The above recital setting forth in substance the provisions of the agreement clearly indicates that it was intended by the parties to be, and is, a complete property settlement between them rather than an agreement for the payment of alimony. It is designated therein by the parties as a property settlement by mutual agreement. It purports to be, and is, complete in itself.

Subsequent to the execution of said agreement the wife obtained a decree of divorce in the State of Florida, in which decree the Florida court ratified, confirmed and approved the separation agreement and also incorporated in its decree in haec verba practically all of the paragraphs of said agreement imposing obligations upon the husband above adverted to.

The complaint charges that the defendant has not made the monthly payments provided for in said agreement, that he has refused to renegotiate the amount of said monthly payments as also provided for, that he has failed to assign the insurance policies and has not paid the premiums thereon as

Page 53

[32 Del.Ch. 324] 1. Was the separation agreement merged in the decree?

Generally speaking, one effect of a judgment is to merge therein the cause of action from the date of the judgment. However, this doctrine is enunciated for the purpose of promoting justice and may be carried no further than the ends of justice require. Freeman on Judgments; Vol. 2, Sec. 550, p. 1172; 30 Am.Jur. Sec. 150, p. 903; Byram v. Miner, 8 Cir., 47 F.2d 112, 119, certiorari denied; 283 U.S. 854, 51 S.Ct. 648, 75 L.Ed. 1461; Jones v. Berkley, Ohio Com. Pl., 12 Ohio Supp. 82; Cobbey v. Peterson, 89 Colo. 350, 3 P.2d 298. See also other cases cited in 50 C.J.S., Judgments, § 599, p. 22, note 75.

An examination of the agreement clearly demonstrates that it is much more than an agreement for the payment of alimony. There are many authorities cited in plaintiff's brief in which an equitable action is permitted on the judgment of a court in another state based upon an agreement for the payment of money. In most of those cases the courts have treated the agreement as an alimony agreement and, therefore, as being merged with the judgment or decree of the court of the other state. However, an examination of these cases fails to substantiate the contention that there is a merger where the agreement constitutes a complete property settlement between the parties and includes provisions other than for the payment of money. To the contrary, I find the law to be that in the case of a separation agreement providing for more than the payment of money the courts will not declare that the agreement merged with the subsequent decree or judgment of divorce. McQuillen et al. v. Dillon et al., 2 Cir., 98 F.2d 726; Barber v. International Co. of Mexico, 74 Conn. 652; 51 A. 857; Restatement of the Law, Judgments, Sec. 47(h); 30 Am.Jur., Judgments, Sec. 155, p. 905; 50 C.J.S., Judgments, § 868, p. 442. In Corpus Juris Secundum, supra, the law with reference[32 Del.Ch. 325] to the merger of an agreement with a later judgment is set forth as follows: 'To support a suit thereon, a foreign judgment must be a valid, final, personal adjudication in full force and virtue for the payment of money only'.

The law is also clearly set forth in Restatement of the Law, as follows: 'Where a judgment for the plaintiff, whether in a proceeding at law or in equity, is not a judgment for the payment of money, the plaintiff's original cause of action is not merged in the judgment * * * the plaintiff is not precluded from maintaining an action in another state on the original cause of action.'

A suit may only be brought on a foreign judgment which establishes a definite, unconditional liability for the payment of money. Beale, Conflict of Laws, Sec. 449.1; American Law Institute, Restatement of Conflict of Laws, Sec. 449. In the McQuillen case cited above the court based its decision upon the ground of failure of personal service.

The case of Coxe v. Coxe, Del.Ch. 384,178 A. 104, 105, was a case in which the facts were very similar to this case. In that case the Chancellor interpreted the language of the decree in which 'the parties hereto are hereby ordered and directed to comply with the said property settlement agreement and to execute the terms thereof' as perpetuating the agreement rather than merging it with the decree. It is capable of that construction, since the provisions of the agreement were not incorporated in the decree. However, it must be noted ...

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