308 N.Y. 155, 124 N.E.2d 99 (1954)
Married in England in 1917, Mr. and Mrs. Auten lived there with their two children until the husband deserted the wife in 1931.1 The husband then came to the United States, obtained a Mexican divorce in 1932, and remarried.2 In June 1933 the wife traveled to New York City to discuss their differences, and the parties executed a separation agreement.3 The agreement required the husband to pay £50 per month to a New York trustee for the support of the wife and children, who were to return to England.4 It included covenants that the parties would live separate and apart and that the wife would not sue or complain regarding the divorce or remarriage.5
Immediately after signing, the wife returned to England.6 The husband made only a few payments under the agreement.7 In August 1934 the wife filed a petition for separation in an English court charging adultery.8 The husband was served in New York in December 1936, and the English court ordered alimony pendente lite in July 1938.9 The action never proceeded to trial, and the wife stated it was brought solely to enforce the separation agreement on the advice of English counsel.10
In 1947 the wife sued in New York to recover $26,564 due under the agreement from January 1, 1935 to September 1, 1947.11 The husband defended by claiming the English action repudiated the agreement.12 Special Term granted the husband's motion for summary judgment and dismissed the complaint.13 The Appellate Division affirmed with leave to amend for pre-English suit claims, producing a final judgment of modification.14 The wife appealed to the Court of Appeals of New York as of right.15
Whether the law of England or the law of New York governs the effect of the wife's institution of a separation action in England upon the separation agreement executed in New York?16
Under the grouping of contacts theory, the law of the place which has the most significant contacts with the matter in dispute governs the effect of the wife's institution of the separation suit upon the separation agreement.17
Yes. The facts establish that the parties were married in England in 1917 and lived there with their two children until the husband deserted the wife in 1931.18 The husband then came to the United States, obtained a Mexican divorce in 1932, and remarried. In June 1933 the wife traveled to New York City to discuss their differences, and the parties executed a separation agreement. The agreement required the husband to pay £50 per month to a New York trustee for the support of the wife and children, who were to return to England. It included covenants that the parties would live separate and apart and that the wife would not sue or complain regarding the divorce or remarriage.
Immediately after signing, the wife returned to England. The husband made only a few payments under the agreement. In August 1934 the wife filed a petition for separation in an English court charging adultery. The husband was served in New York in December 1936, and the English court ordered alimony pendente lite in July 1938. The action never proceeded to trial, and the wife stated it was brought solely to enforce the separation agreement on the advice of English counsel.
In 1947 the wife sued in New York to recover $26,564 due under the agreement from January 1, 1935 to September 1, 1947. The husband defended by claiming the English action repudiated the agreement. Special Term granted the husband's motion for summary judgment and dismissed the complaint. The Appellate Division affirmed with leave to amend for pre-English suit claims, producing a final judgment of modification. The wife appealed to the Court of Appeals of New York as of right.
Applying the grouping of contacts theory to these facts, England has all the truly significant contacts while New York's sole nexus is that the agreement was made there and the trustee had his office there.19 The agreement effected a separation between British subjects who had been married in England, had children there and lived there as a family for fourteen years.20 It involved a husband who had willfully deserted and abandoned his wife and children in England and an English wife who came to New York only temporarily to secure support before returning to England with the children.21 The agreement is instinct with the understanding that the wife and children would remain in England, payments were for their account in English currency, and the husband could visit the children if he went to England.22 Therefore English law governs the effect of the wife's institution of the separation suit.23
English law governs the effect of the wife's institution of the separation action upon the separation agreement, and summary judgment should not have been granted.24