Auten v Auten (1922) – Fuld, J.
Plaintiff: Margarite Auten
Defendant: Harold Auten
Concept:
Brief facts: Margarite Auten sues Harold Auten in New York
to recover support for her and her children that Harold
owed by virtue of a separation agreement. The Autens
were married in England. Harold deserted her, went to
America, obtained a Mexican divorce, then married
another woman. Margarite went to New York, where she
and Harold came to a separation agreement which
provided that Harold was to pay to a trustee, for
Margarite’s account, 50 pounds sterling (British currency) a
month for her support and that of their 2 children. The
agreement also provided that they were not to sue each
other in any action relating to their separation, and
Margarite would not cause any complaint against Harold
in any jurisdiction because of his alleged divorce and
remarriage. Harold made a few payments only, so
Margarite filed a petition for separation in England,
charging Harold with adultery. Harold was served in New
York with process in that suit and he was ordered to pay
alimony pendent lite. This English case never proceeded
to trial. Margarite instituted the instant suit to recover
support due under the agreement.
Doctrine: Center of Gravity/Grouping of Contacts Theory:
The courts, instead of regarding as conclusive the parties’
intention or the place of making or performance, lay
emphasis rather upon the law of the place which has the
most significant contacts with the matter in dispute.
FACTS:
1. 1917: Harold and Margarite Auten were married in
England, living there with their 2 children until 1931.
2. 1931: According to Margarite, Harold deserted her,
came to America, obtained a Mexican divorce, then
married another woman.
3. 1933: They came to a separation agreement, which
provided that:
o Harold was to pay to a trustee, for the account of
Margarite, £50 (50 pounds sterling) a month for the
support of Margarite and her 2 children.
o They were to live separate and apart.
o They were not to sue each other in any action
relating to their separation.
o Margarite would not cause any complaint to be
lodged against Harold in any jurisdiction because of
the alleged divorce or remarriage.
4. Harold made a few payments only, leaving Margarite
and her children destitute.
5. August 1934: Margarite filed a petition for separation in
an English court, charging Harold with adultery
6. December 4, 1936: Harold was served in New York with
process in that suit.
7. July 1938: Harold was ordered to pay alimony pendente
lite.
8. This English case never proceeded to trial.
9. 1947: Margarite brought the instant suit to recover
$26,564 representing support due under the agreement,
from January 1, 1935 to September 1, 1947.
CFI dismissed the complaint.
The Appellate Division affirmed the lower court’s decision
ISSUES:
Which law applied as to the issue of whether Margarite’s
commencement of the English case (petition for
separation with charge of adultery) constituted a
rescission and repudiation of the separation agreement?
English
RATIO:
Based on the “center of gravity” or “grouping of contacts” theory
of the conflict of laws, English law governs.
The decisions in New York jurisprudence as to which law applies to
contracts with elements in different jurisdictions show several
approaches.
o Most of the cases rely on these general rules, which were
thought to be conclusive:
 "All matters bearing upon the execution, the interpretation
and the validity of contracts are determined by the law of the
place where the contract is made"
 "All matters connected with performance are regulated by
the law of the place where the contract, by its terms, is to be
performed."
 What constitutes a breach of the contract and what
circumstances excuse a breach are considered matters of
performance, governable, within this rule, by the law of the
place of performance.
o However, recent decisions have innovated by employing a
method that rationalizes the choice of law. This method has
been called the “center of gravity” or “grouping of contracts”
theory.
 “The courts, instead of regarding as conclusive the parties’
intention or the place of making or performance, lay
emphasis rather upon the law of the place which has the
most significant contacts with the matter in dispute.”
 This method may seem less predictable but it gives to the
jurisdiction having the most interest in the problem, control
over the legal issues arising from a specific set of
circumstances, allowing the forum to apply the rules of the
jurisdiction most intimately connected with the outcome of
the particular case.
 This has been thought to effect the probable intention of the
parties when making their contract.
In the instant case:
o England has the most significant contacts with the case.
 The agreement was between British subjects.
 They were married in England.
 They lived there as a family for 14 years.
 Harold abandoned his family and was in the US on a
temporary visa.
 Margarite’s sole purpose was to get Harold to agree to
support their family.
 The money was to be paid to a trustee in New York but those
who stood to benefit live in England.
 The agreement refers to British currency (pounds sterling.)
o New York’s only connection to the case is where the agreement
was made , and where the trustee to whom the money was to
be paid held office.
o It is unlikely that Margarite intended to subject herself to the law
of another state which she was not familiar with.
 English law must be applied.
o It is for the courts of that state to determine whether
Margarite’s institution of a case constituted a breach of their
agreement.
1
 o The Court noted that based on English law, there was no breach
of the agreement by Margarite.

DISPOSITIVE: The judgment of the Appellate Division and that of

Special Term insofar as they dismiss the complaint should be
reversed, with costs in all courts, and the matter remitted for further
proceedings in accordance with this opinion.