Barrett v. Barrett

• Decision Date: 18 December 1987
• Citation: 523 N.Y.S.2d 297,135 A.D.2d 1077
• Parties: Joan A. BARRETT, Appellant, v. J. Patrick BARRETT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 297

523 N.Y.S.2d 297

135 A.D.2d 1077

Joan A. BARRETT, Appellant, v. J. Patrick BARRETT, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 18, 1987.

Eric M. Alderman, Syracuse, for appellant.

Bond, Schoeneck & King, Syracuse, Carl Tunick, New York City, for respondent.

Before DILLON, P.J., and DOERR, GREEN, BALIO and DAVIS, JJ.

MEMORANDUM:

In 1979, the parties entered into a separation agreement which set forth, among other things, the support obligations of defendant to plaintiff and their children. The agreement provided that its terms would be incorporated but not merged into any future divorce decree, and could be modified only by written agreement of the parties or by court order. Thereafter, in 1980, defendant obtained a divorce in the Dominican Republic, plaintiff having submitted to the jurisdiction of the foreign court.

In 1981, plaintiff commenced the present action seeking to rescind the separation agreement claiming it had been procured by fraud, duress, misrepresentation and threats. Thereafter, in February 1986, on the eve of trial and almost five years after the action had been commenced, plaintiff moved to amend her complaint to add a cause of action seeking to set aside the divorce decree issued by the Dominican Republic. The reason assigned for the request to amend the complaint was correctly stated to be that in order to attack the validity of the separation agreement incorporated into the foreign divorce decree, the foreign decree must be vacated. Counsel stated that he had only recently discovered the authority for this legal proposition in Feinberg v. Feinberg, 96 Misc.2d 443, 409 N.Y.S.2d 365, affd. 70 A.D.2d 612, 415 N.Y.S.2d 1018 (the case, in fact, was decided in 1978 and affirmed in 1979). The court denied the motion to amend and dismissed the complaint in its entirety. We affirm.

It is well settled that a party to a separation agreement may not attack the validity of the agreement after it has been incorporated into a valid, bilateral foreign decree of divorce ( Galyn v. Schwatz, 56 N.Y.2d 969, 972, 453 N.Y.S.2d 624, 439 N.E.2d 340; Greschler v. Greschler, 51 N.Y.2d 368, 376-377, 434 N.Y.S.2d 194, 414 N.E.2d 694; Resslhuber v. Resslhuber, 57 A.D.2d 552, 393 N.Y.S.2d 70; Fink v. Goldblatt, 18 A.D.2d 629, 235 N.Y.S.2d 56, affd. 13 N.Y.2d 957, 244 N.Y.S.2d 457, 194 N.E.2d 423). There exists an exception to this general rule, however. "The principle appears to be well established that a collateral attack on the underlying separation agreement is permissible in this State if the law of the jurisdiction rendering the judgment would allow an attack on its own...