Benny v. Benny

• Decision Date: 20 December 1993
• Citation: 605 N.Y.S.2d 311,199 A.D.2d 384
• Parties: In the Matter of Elizabeth BENNY, Respondent, v. Louis M. BENNY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 311

605 N.Y.S.2d 311

199 A.D.2d 384

In the Matter of Elizabeth BENNY, Respondent, v. Louis M. BENNY, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 20, 1993.

Leibowitz, Peterson & Kane, Jericho (R. Bertil Peterson, of counsel), for appellant.

Caroline Levy, Northport, for respondent.

Before MANGANO, P.J., and BALLETTA, EIBER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding, inter alia, pursuant to Family Court Act article 4 for maintenance and child support, in which the defendant husband moved to terminate maintenance provided for in a stipulation of settlement of a California divorce action, incorporated but not merged in a California judgment of divorce, the former husband appeals (1) as limited by his brief, from stated portions of an order of the Supreme Court, Suffolk County (Segal, J.), dated August 6, 1990, which, inter alia, denied his application to terminate maintenance, and (2) from an order of the same court (Goodman, J.), dated January 29, 1992, which granted the plaintiff wife's motion to hold him in contempt for failure to pay maintenance.

ORDERED that the order dated August 6, 1990, is affirmed insofar as appealed from, and the order dated January 29, 1992, is affirmed, with one bill of costs.

The former wife and the appellant former husband were married on June 16, 1981, and had twin girls on January 9, 1983. They resided together in California until August 6, 1983. The former husband then commenced an action for divorce in California, and the former wife, who had moved to New York, brought the instant proceeding, inter alia, for maintenance and child support. In February 1984 the parties executed a stipulation of settlement in California, which was incorporated, but not merged, into a California judgment of divorce entered June 22, 1984. The separation agreement provided that the California courts would retain jurisdiction over the maintenance provisions and that the New York courts would retain jurisdiction over the child support and visitation provisions in the instant proceeding. The former wife remarried in 1988.

On May 14, 1990, after disputes arose over the visitation provisions of the California stipulation of settlement, the parties placed a stipulation of settlement on the record before the Supreme Court, Suffolk County, in which the former husband agreed to pay arrears due under the California stipulation of settlement and agreed to certain modifications of child support. Thereafter, the former husband moved pursuant to Domestic Relations Law § 248 to terminate maintenance, based upon the former wife's remarriage. In the order appealed from dated August 6, 1990, the Supreme Court, Suffolk County (Segal, J.), denied the motion, finding that the language of the California stipulation manifested the parties' intent that the former husband's obligation to pay maintenance was not conditioned on the former wife's marital status. The Supreme Court further noted that the former husband had failed to raise the issue of his obligation to continue to pay maintenance when he entered into the New York stipulation of settlement dated May 14, 1990.

The former husband thereafter moved in the Superior Court of California to terminate his maintenance obligations as a matter of law. That motion was denied on the ground of res judicata, because the Supreme Court, Suffolk County, had already denied his motion for the same relief. The California court ruled that that denial was with prejudice, so long as the order of the Supreme Court, Suffolk County, dated August 6, 1990, remained in effect.

The former wife moved in New York to hold the former husband in contempt for his continued failure to pay maintenance, and the former husband brought a second application in California to "modify to zero" his maintenance obligation. By order dated May 30, 1991, the Superior Court of California, Orange County, granted the former husband's application, retroactive to March 1991. Specifically, the Superior Court based its decision on "a substantial change of circumstances", to wit, that the former wife had remarried and acquired a license to practice law in New York.

By order dated January 29, 1992, the Supreme Court, Suffolk County (Goodman, J.), found the former husband in contempt of court for failure to pay maintenance.

We find that the Supreme Court properly determined, in its decision and order dated August 6, 1990, that the California stipulation of settlement manifested the parties' intent that maintenance would not terminate as a matter of law upon the former wife's remarriage. Although it is a matter of public policy in New York that one spouse, upon remarriage, may not compel support from a prior spouse (see, Domestic Relations Law § 236[B][6][c]; Jacobs v. Patterson, 112 A.D.2d 402, 403, 492 N.Y.S.2d 59; Sacks v. Sacks, 168 A.D.2d 733, 734, 563 N.Y.S.2d 884), an agreement requiring maintenance to continue after remarriage is not against public policy and is enforceable (see, Jung v. Jung, 171 A.D.2d 993, 994, 567 N.Y.S.2d 934; Sacks v. Sacks, supra, 168 A.D.2d at 734, 563 N.Y.S.2d 884; Fredeen v. Fredeen, 154 A.D.2d 908, 546 N.Y.S.2d 60). While no such obligation should be assumed where the agreement is silent concerning the effect of remarriage (see, Jacobs v. Patterson, supra ) the court will examine the language of the agreement as well...