Adeline J. Crawford v. Francis B. Crawford, 254 F.2d 113, 3rd Cir. (1958)

254 F.
2d 113
Adeline J. CRAWFORD,
v.
Francis B. CRAWFORD, Defendant-Appellant.
No. 12225.
United States Court of Appeals Third Circuit.

Submitted at Charlotte Amalie January 29, 1958.
Decided April 14, 1958.
Vivian Flamhaft, New York City, for appellant.

Jorge Rodriguez, Charlotte Amalie, St. Thomas, V. I., for appellee.
Before MARIS, MAGRUDER and STALEY, Circuit Judges.
MAGRUDER, Circuit Judge.
Adeline J. Crawford and Francis B. Crawford were married in 1941. A child,

Nancy, was subsequently born of this union.
The parties to the marriage became estranged, and on December 13, 1950, they
executed a separation agreement, which recited that the parties thereto were
desirous of settling their property rights and the question of the custody of the
child, "and the Husband is desirous of making provision for the maintenance
and support of the Wife and for the maintenance, support and education of the
Child". Clause 1 of the agreement provided that the parties "shall at all times
hereafter live separate and apart, * * * as if he or she were sole and unmarried."
It was provided in the fourth clause that the wife should have custody of the
child, and control, supervision and direction of her upbringing, subject,
however, to a right of visitation in the husband one day each month. Clause 5
provided as follows:
"The Husband shall pay to the Wife the sum of One hundred and sixty Dollars
($160.00) per month, payable on the 7th day of each and every month,
commencing February 7, 1951, for the support and maintenance of the Wife
and for the support, maintenance and education of the Child.
"(a) All payments by the Husband to the Wife as provided in this Paragraph 5.
of the agreement shall cease and terminate in the event that
"(i) The Wife at any time hereafter remarries; or
"(ii) The Child dies, marries or attains her majority.
"(b) The obligation of the Husband with respect to payments hereunder and the
rights of the Wife to receive such payments shall not survive their respective
deaths."
It was also stated that "except as otherwise provided herein, all liability of
whatsoever nature on the part of the Husband to the Wife, past, present and
future, actual or potential, whether arising from their relationship as husband
and wife, or otherwise, shall cease and terminate absolutely and forever."
Clause 11 contained the following terms:
"The provisions of this agreement shall not be construed to preclude or bar

either of the parties hereto from maintaining a suit for absolute divorce against
the other in any jurisdiction upon any lawful grounds whatsoever; provided,
however, that if consistent with the rules and practice of the court granting such
decree of absolute divorce, the terms and provisions of this agreement,
particularly with reference to the support and maintenance of the Wife and
custody, support maintenance and education of the Child are concerned, shall
be incorporated in such decree. No decree so obtained by either party shall in
any way affect this agreement or any of the terms, covenants or conditions
thereof, this agreement being absolute, unconditional and irrevocable and both
parties intending to be legally bound thereby."
10
The separation agreement is not a model of logical symmetry. For instance,

although the announced purpose was to provide for the maintenance and
support both of the mother and of the child, the payment obligation, in its
entirety, terminated upon the death of either. But that is the way the document
was written.
11
The wife brought a divorce action in the District Court of the Virgin Islands on
the ground of cruel and abusive treatment. The husband, who was never a
resident of the Virgin Islands, filed a notice of appearance, answer and waiver,
and admitted the execution of the aforesaid separation agreement. In that
divorce proceeding the district court issued its decree on February 13, 1951,
dissolving absolutely the marriage between the parties and further providing as
follows:
12
"Ordered adjudged and decreed that the plaintiff be and hereby is granted the
custody of their child Nancy Jane Crawford, further ordered that the defendant
shall have reasonable rights of visitation. That the defendant shall pay to the
plaintiff the sum of $160.00 each and every month beginning with the 7th day
of March, 1951, as and for the support of the plaintiff and their child, until such
time as the child shall attain her majority or be married. Said payments shall
further cease upon the decease of either the child or the plaintiff or the
remarriage of the plaintiff herein."
13
The said decree of divorce did not incorporate by reference the provisions of
the separation agreement. Nor did the divorce decree refer to that agreement at
all. Sometime after the rendition of the divorce decree, the ex-wife and child
left the jurisdiction of the Virgin Islands, and have never returned.
14
Subsequently the ex-wife was committed to Harlem Valley State Hospital,

Wingdale, New York, as a mentally ill person. The ex-husband on March 22,
1955, brought the child to his home in Larchmont, New York, where she has
since been residing. In a proceeding in the Supreme Court of the State of New
York on January 24, 1956, that court entered a decree "that the temporary
custody of Nancy Joan Crawford, who has been in the care of the petitioner
since March, 22, 1955, be and the same hereby is awarded to her father, Francis
B. Crawford, petitioner herein, during the period of respondent mother's
commitment".
15
Thereafter the ex-husband filed an application before the District Court of the
Virgin Islands, supported by an affidavit and a supplemental affidavit of the
applicant, with exhibits annexed thereto, seeking to have the district court
modify the aforesaid decree of divorce so as to delete in its entirety therefrom
the provision for payment by the applicant to the ex-wife of $160 per month.
The district court, after hearing counsel for the ex-husband and a duly
appointed guardian ad litem representing Adeline J. Crawford, entered an order
on February 15, 1957, modifying the said terms of the divorce decree so as to
provide that
16
"beginning on March 22, 1955 and continuing during all the time the child
Nancy Jane Crawford is in the temporary custody of the defendant pursuant to
the order of the Supreme Court of New York, the defendant shall pay to the
plaintiff for the plaintiff's support the sum of $80.00. That if at any time the
custody of the child is again restored to the plaintiff, the defendant, from the
date she is again with the plaintiff, shall pay to the plaintiff the sum of $160.00
for the support of the plaintiff and their child, until such time as the child shall
attain her majority or be married. Said payments shall further cease upon the
decease of either the child or the plaintiff, or the remarriage of the plaintiff
herein."
17
The ex-husband took his appeal from this order modifying the divorce decree.
His dissatisfaction with the order was that, instead of deleting altogether the
provision for payments by the ex-husband, the district court merely cut the
provision for payments in half, upon the evident assumption that the original
requirement to pay $160 a month had been intended to provide in equal parts
for the maintenance and support of both the ex-wife and of the child.
18
Appellant's contention is that he never intended in the separation agreement to

make any provision for the maintenance and support of Adeline J. Crawford;
that the term calling for the payment of $160 per month was "solely for the
support of the child and for the use of the wife in furnishing and maintaining a
home for the child", and was therefore payable to her "only while she cared for
and maintained a home for the child." Assuming, for present purposes, that the
divorce court was bound by the terms of the separation agreement, still we find
no such limiting condition in the terms of clause 5 of the agreement. Certainly
it was specifically provided that the payments to Adeline J. Crawford were to
cease if she remarried, despite the fact that she might be continuing to furnish a
home and support for the child. Furthermore, such supposed condition is
contrary to the preliminary recital in the separation agreement to the effect that
the husband was desirous of making provision "for the maintenance and
support of the Wife and for the maintenance, support and education of the
Child". (Emphasis added.) Upon the whole, it seems that the district court was
well warranted in concluding that the monthly payments of $160 were intended
for two different purposes, maintenance and support of Adeline J. Crawford,
and maintenance and support of the child, neither purpose depending on the
other for its continuance, except as specifically provided in the agreement.
When by the decree of the Supreme Court of New York the temporary custody
of the child was awarded to the ex-husband, with the consequent burden upon
him to supply the child's maintenance and support, we could hardly say that the
district court committed an abuse of discretion in amending the terms of the
divorce decree to take account of that subsequent development by providing
that, so long as the child remained in the defendant's temporary custody, he
should be obliged to pay to the appellee only the sum of $80 per month.
19
A judgment will be entered affirming the order of the District Court.

Adeline J. Crawford v. Francis B. Crawford, 254 F.2d 113, 3rd Cir. (1958)

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Adeline J. Crawford v. Francis B. Crawford, 254 F.2d 113, 3rd Cir. (1958)

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254 F.

United States Court of Appeals Third Circuit.

Vivian Flamhaft, New York City, for appellant.

Adeline J. Crawford and Francis B. Crawford were married in 1941. A child,

"(i) The Wife at any time hereafter remarries; or

"(ii) The Child dies, marries or attains her majority.

"The provisions of this agreement shall not be construed to preclude or bar

The separation agreement is not a model of logical symmetry. For instance,

Subsequently the ex-wife was committed to Harlem Valley State Hospital,

Appellant's contention is that he never intended in the separation agreement to

A judgment will be entered affirming the order of the District Court.

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