The Fourth Department reversed Supreme Court and determined that a provision in a separation agreement which was incorporated but not merged into the divorce decree constituted an employment contract breached when the plaintiff wife opened a competing business. The reason for the agreement was to allow plaintiff wife to be paid maintenance by defendant husband’s business during the time when the husband was obligated to pay child support. The wife was a consultant to defendant’s business:
It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce “is a contract subject to the principles of contract construction and interpretation” … , and “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . By entering into the Agreement, defendant agreed to employ plaintiff in the event his maintenance obligation terminated during the period of time in which he was still obligated to pay child support. Inasmuch as the language of the Agreement is clear and unambiguous on its face, “the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence” … .
While we agree with plaintiff and the court that the clear and unambiguous intent of the Agreement was to provide a substitute source of monetary support for plaintiff after defendant’s maintenance obligation terminated, we conclude that the reason defendant agreed to employ plaintiff does not change the fact that the Agreement established an employment relationship with corresponding rights and obligations for both parties.
As we have previously stated, “[a]n employee may not compete with his [or her] employer’s business during the time of his [or her] employment” … . When plaintiff opened a business in direct competition with defendant’s business, plaintiff breached her duty of loyalty to her employer … , thereby permitting defendant to terminate the consultation fees and the employment relationship. Anderson v Anderson, 2014 NY Slip Op 06415, 4th Dept 9-26-14