Chesta v. Chesta

• Decision Date: 09 May 1973
• Citation: 344 N.Y.S.2d 578,74 Misc.2d 548
• Parties: In the Matter of Mary W. CHESTA, * Petitioner, v. Franklin A. CHESTA, * Respondent. Family Court of the City of New York, Queens County
• Court: New York Family Court

Page 578

344 N.Y.S.2d 578

74 Misc.2d 548

In the Matter of Mary W. CHESTA, ^* Petitioner, v. Franklin A. CHESTA, ^* Respondent Family Court of the City of New York, Queens County.

May 9, 1973.

John Satta, New York City, for petitioner.

Michael Hirsch, New York City, for respondent.

DECISION AND ORDER

JACOB LUTSKY, Judge:

The petitioner commenced this proceeding for a modification of a foreign divorce decree pursuant to Family Court Act Section 466(c) to provide for alimony for herself.

The parties were married on June 16, 1951 and there is one issue of the marriage, Susan, born December 22, 1951. The parties executed a separation agreement on June 29, 1964 which was incorporated but not merged in a divorce decree obtained by the husband in Mexico on January 15, 1965.

The agreement provided that the husband shall pay $75.00 per week for the support of his daughter during her minority and to continue until completion of her education, but not beyond age 25.

In addition Subsection 3 of Paragraph III provided the following with respect to support for the wife:

'it is expressly understood that the wife is now gainfully employed, and expects and desires to continue to be so employed. If the wife does not continue to be employed in a position which will enable her to maintain a proper standard of living for herself and her daughter, the husband hereby agrees to increase the weekly payment of $75.00 by an amount agreeable to the parties, or if no such agreement can be reached, to an amount which may be required by a court of competent jurisdiction.'

On March 26, 1965, subsequent to the Mexican divorce decree, the parties entered into and executed a modification agreement of the separation agreement. Among other things, the aforesaid Subsection 3 of Paragraph III was eliminated by omission and it modified the support provisions for the child. The modified agreement is thus completely silent as to support for the wife.

The wife in this proceeding is now seeking to Modify (emphasis by the court) the provisions of the separation agreement incorporated in the divorce decree to provide for alimony for herself.

There are two questions which must be resolved in arriving at a decision herein:

1. May a modification agreement executed subsequent to the divorce decree affect the support provisions of the original agreement and be given effect by the Family Court?

2. Does the Family Court have the power to modify this Mexican divorce decree to provide for alimony for the wife under the facts set forth above?

This court finds that the answer to the first question is in the negative.

It appears quite clear that divorce decrees in Mexico are final and may not be modified. In Schoenbrod v. Siegler, 20 N.Y.2d 403, 283 N.Y.S.2d 881, 230 N.E.2d 638, the husband instituted proceedings in Mexico to vacate the Mexican divorce decree on the grounds that the marriage ceremony was not performed by a person authorized by law to perform marriage ceremonies. The Mexican court denied the petition for relief on the ground that it had no power under Mexican law to reopen the original decree for any purposes whatsoever.

To the same effect see Belt v. Belt, 67 Misc.2d 679, 324 N.Y.S.2d 623.

Since the Mexican decree herein is non-modifiable and since the Family Court can only enforce or modify divorce decrees, any subsequent agreements cannot be acted upon by the Family Court. If the subsequent agreement has any validity at all, it can only be considered in the Supreme Court.

As to the second and more important question, this court, after a review of the authorities, holds that the petitioner-wife must resort to a proceeding in the Supreme Court if she seeks to obtain any alimony.

Family Court Act sec. 466(c) authorizes the Family Court, in cases of foreign divorce decrees, to enforce orders of support or alimony or to modify such orders where there has been a subsequent change in circumstances requiring modification.

There are four general types of situations which may arise in cases of divorce involving alimony for which relief might be sought for pursuant to Family Court Act section 466(c):

1. A divorce decree where no provison is made for alimony for the wife.

2. A divorce decree incorporating a separation agreement wherein the wife expressly waives her right to alimony.

3. A divorce decree incorporating a separation agreement which is silent as to alimony for the wife.

4. A divorce decree incorporating a separation agreement which provides specifically for a certain amount to be paid to the wife for her support or alimony.

In the type I situation it appears clear that the Family Court has no jurisdiction. The case of Chrestman v. Chrestman, 60 Misc.2d 780, 303 N.Y.S.2d 733, is a case exactly in point. The court's reasoning appeared to be that, since no right to alimony had been established in the decree, the wife was not entitled to support.

In the case of type 2 we have facts similar to the case of Calwil v. Calwil, 34 A.D.2d 535, 309 N.Y.S.2d 24, wherein the court held that a wife cannot agree to waive her rights to alimony because of the provisions of Section 5--311 of the General Obligations Law. The court, however, did not refer the matter of enforcement or modification of the agreement and/or decree to the Family Court.

In effect we have in the Calwil case an agreement and decree silent as to alimony.

We now come to the case of Infanto v. Infanto, 66 Misc.2d 699, 321 N.Y.S.2d 928, which is the situation in the case of type 3 and, in effect, similar to the Calwil case. The court held in the Infanto case that the Family Court is without jurisdiction to make an original order of support for a former spouse.

It is clear that the Family Court has no power to enforce or modify a separation agreement unless the wife is liable to become a public charge (McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185).

Since the divorce decree incorporating the agreement did not contain a support provision, there is nothing for the Family Court to enforce pursuant to section 466(c) the court ruled in Infanto. It also held that to modify the decree to provide for alimony is to create or bring into existence that which the Family Court lacks the power to do....