## Facts

- Husband and wife married and lived in England with their children.
- The husband left the wife, obtained a Mexican divorce without her participation, and later settled in New York.
- In 1933, while in New York, the parties executed a separation agreement requiring the husband to pay monthly support for the wife and children.
- The agreement required payment in English pounds through a New York trustee and contemplated that the wife and children would reside in England.
- The agreement included a covenant not to sue concerning the separation.
- The husband failed to make most payments.
- The wife returned to England and filed an English judicial-separation action alleging adultery, obtaining temporary alimony; she did not pursue a final judgment.
- In 1947, the wife sued in New York to recover unpaid installments under the 1933 agreement.
- The husband argued the English action and temporary alimony repudiated/rescinded the agreement and breached the covenant not to sue, barring recovery.

## Issues

1. Which law governs the effect of the wife’s English separation action on the New York-executed separation agreement: New York law or English law?
2. Under the governing law, did filing the English action and obtaining temporary alimony constitute repudiation/rescission barring recovery of later installments?
3. Did the covenant not to sue bar the wife’s contractual claim for arrears based on her resort to the English court?

## Decision

- The Court of Appeals reversed the dismissal and remitted for further proceedings.
- The court held that English law governed the effect of the English marital proceeding on the separation agreement.
- Applying English law, the wife’s English action and receipt of temporary alimony did not repudiate or rescind the agreement and did not bar recovery of arrears.
- The covenant not to sue did not foreclose resort to judicial relief to secure support after the husband’s default, and any asserted breach did not nullify the agreement.

## Legal Principles

- Contract choice-of-law in New York turns on the jurisdiction with the most significant relationship to the issue (“center of gravity” or “grouping of contacts”), not a mechanical rule tied to the place of signing.
- In applying the grouping-of-contacts test, courts weigh the parties’ domicile, the contemplated place of performance, the contract’s economic setting (including currency), and the jurisdiction’s interest in the dispute.
- A spouse’s initiation of a foreign separation proceeding and receipt of temporary support does not necessarily constitute rescission of a separation agreement; the effect depends on the governing law and whether the litigation is inconsistent with continued contractual enforcement.
- A covenant not to sue in a separation agreement is construed in light of the agreement’s support purpose and generally does not bar actions reasonably taken to enforce support obligations following a default.

## Conclusion

The Court of Appeals applied the grouping-of-contacts approach and selected English law because England had the dominant connection to the marital relationship and the agreement’s performance; under English law, the wife’s English separation suit and temporary alimony did not cancel the separation agreement or bar her New York action for unpaid support installments.


Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (N.Y. 1954)