Litwack v. Litwack
Litwack v. Litwack
Opinion of the Court
In this appeal from a declaratory judgment, we have been asked to determine whether a contractual duty to support a former wife “until she shall remarry ...” is terminated by her unmarried cohabitation with another man. The trial court equated unmarried cohabitation with marriage and held that the duty of support was thereby terminated. We disagree and reverse.
On January 26, 1973, prior to divorce, Patricia L. Litwack, appellant, and Gerald Litwack, appellee, executed a separation agreement which provided, inter alia, that he would make monthly support payments to her “until she shall remarry, die, reach the age of sixty-two (62) or shall first be eligible for Social Security payments, whichever shall first occur . .. . ” Appellee continued to make these payments until October, 1979, when he discovered that appellant had lived with another man from December, 1978 to August, 1979.
In construing a separation agreement a court must adopt that construction which gives effect to the parties’ reasonable and probable intent, in view of the surrounding circumstances and purposes of the contract. Kohn v. Kohn,
The meaning of the verb “marry” is clear. Black’s Law Dictionary (Fifth ed. 1979) defines marriage as the “legal union of one man and one woman as husband and wife.” This legal union entails certain duties and responsibilities, including a duty of financial support, which do not arise from cohabitation alone.
The parties’ intent, as expressed in their separation agreement, is equally clear. So long as appellant lived and was not eligible to receive social security, appellee agreed to provide support for his former wife unless the legal obligation for appellant’s support were transferred to another by a contract of marriage. Unmarried cohabitants may voluntarily contribute to the support of each other, but there is no legal obligation to do so, whether it be during cohabitation or after separation. In the instant case, for example, neither of the unmarried cohabitants assumed legal responsibility for the temporary or permanent support of the other. If appellee’s contractual duty were to be deemed terminated by appellant’s temporary cohabitation, appellant would be left without a right to receive financial support from her former cohabitant or from her former husband. This was not the
Appellee contends that the policy announced in Section 507 of the Divorce Code of April 2, 1980, P.L. 68, No. 26, 23 P.S. § 507, requires a contrary interpretation. This section provides:
“No petitioner shall be entitled to receive any award of alimony where such petitioner has entered into cohabitation with a person of the opposite sex...”
This section applies to applications for alimony and does not purport to affect private, contractual obligations. Moreover, this provision was not enacted until seven years after execution of the parties’ agreement, and it cannot be deemed a factor in ascertaining their intent. Finally, if we view the statute as enunciating a policy not to allow “double support,” that policy cannot impair the contract freely entered by the parties in 1973. See: Leffler v. Leffler, 50 A.D.2d 93, 95, 376 N.Y.S.2d 176, 178 (1975).
The cases cited by appellee and relied upon by the court below are not apposite. In Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980), the Court held that voluntary cohabitation
Appellee also contends that appellant, by her misconduct, forfeited her right to receive support for the period during which she maintained a meretricious relationship with another man. A wife’s adultery or similar misconduct, however, is no defense to a contractual duty of support unless the provisions of the contract so provide. There is no such provision in the instant contract. This court cannot read into the agreement a provision which the parties chose not to insert. See: Gutman v. Gutman, 51 A.D.2d 535, 377 N.Y.S.2d 641 (1976); Maloy v. Maloy, 362 So.2d 484 (Fla. App. 1978).
Our decision does not alter the policy of this Commonwealth which favors marriage over adulterous relationships by unmarried cohabitants. It does no more than interpret the written agreement of the parties. If they had intended appellee’s duty to support his former wife to come to an end if she engaged in “a relation akin to marriage” or committed adultery, there is no reason why they could not have so provided. In fact, their agreement contains no such provision, and we will not re-write it for them. We cannot add a provision to which the parties have not agreed merely because of. our own or another’s concept of right and/or fairness.
Reversed and remanded for the entry of an adjudication consistent with the foregoing opinion.
. During this period of cohabitation, appellant had engaged in sexual intercourse with her unmarried cohabitant. With the exception of the rent, however, she had paid her own expenses. The evidence did not disclose that they represented themselves to be husband and wife, and there is no evidence to indicate the existence of a common law marriage.
. Affirmed at 40 N.Y.2d 1036, 391 N.Y.S.2d 855, 360 N.E.2d 355.
Dissenting Opinion
dissenting:
I dissent. The learned Common Pleas Judge expresses certain very persuasive reasons for voiding the provisions of the agreement relating to support and for those reasons, I would suspend the contractual obligation to support for and during the period of cohabitation.
Reference
- Full Case Name
- Patricia L. LITWACK, Appellant, v. Gerald LITWACK
- Cited By
- 49 cases
- Status
- Published