Carbone v. Alverio

• Decision Date: 06 July 1982
• Parties: Josephine D. CARBONE, Appellant, v. Michael ALVERIO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 121

452 N.Y.S.2d 121

89 A.D.2d 553

Josephine D. CARBONE, Appellant, v. Michael ALVERIO, Respondent.

Supreme Court, Appellate Division Second Department.

July 6, 1982.

Joseph Canzoneri, Franklin Square, for appellant.

Wimpfheimer & Sherman, Mineola (Steven Wimpfheimer and Charles S. Sherman, Mineola, of counsel), for respondent.

Before LAZER, J. P., and MANGANO, GIBBONS and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to enforce the terms of a judgment of divorce rendered by the State of California, commenced by service of a summons with a notice of motion for summary judgment in lieu of a complaint, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, dated March 19, 1981, as denied her motion.

Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion granted to the extent of incorporating the "judgment of dissolution of marriage" rendered by the Superior Court of California, County of Los Angeles, into a New York judgment, and granting plaintiff arrears due thereunder. The matter is remitted to Special Term for a hearing as to the amount of arrears and on the issue of counsel fees.

The plaintiff was awarded a judgment of divorce against defendant in California in 1979. The provisions of a prior separation agreement were incorporated into that judgment. The judgment provides, inter alia, for the support and maintenance of the infant child of the marriage in the amount of $175 monthly for the period of November 1, 1978 through August, 1979, and in the amount of $300 monthly commencing September, 1979. The judgment also obligates defendant to maintain life, medical and dental insurance for the benefit of the child.

Plaintiff commenced this action by service of a summons with a notice of motion for summary judgment in lieu of a complaint pursuant to CPLR 3213. She seeks a judgment for arrears alleged to be due under the California judgment, incorporation of the provisions of the California judgment into a New York judgment, and counsel fees. Defendant cross-moved for an order rescinding and/or reforming the separation agreement and modifying the financial provisions of the judgment of divorce. He alleged that he had consented to the agreement increasing the amount of child support upon his wife's fraudulent misrepresentation that she needed additional money to maintain their daughter in a private school. He also contested the amount of the arrears. Plaintiff denied making any misrepresentations and asserted that further arrears existed. Special Term, inter alia, denied plaintiff's motion for summary judgment, finding triable issues of fact to be present, and directed defendant to serve a responsive pleading.

A party to a separation agreement may not collaterally attack the validity of the agreement on the grounds of fraud or mistake after it has been incorporated in a valid, bilateral divorce decree (with certain exceptions not here applicable) (Galyn v. Schwartz, 53 N.Y.2d 701, 439 N.Y.S.2d 109, 421 N.E.2d 504 Rehill v. Rehill, 306 N.Y. 126, 116 N.E.2d 281; Resslhuber v. Resslhuber, 57 A.D.2d 552, 393 N.Y.S.2d 70). While a judgment may be attacked where extrinsic fraud is alleged to have deprived the opposing party of a trial as, for example, by keeping him away from court by a false promise of compromise or discontinuance of the action (see, e.g., Tamimi v. Tamimi, 38 A.D.2d 197, 328 N.Y.S.2d 477), no extrinsic fraud is claimed here. The wife's alleged misrepresentations of her financial status are "in essence no different from any other type of perjury...