Cicerale v. Cicerale

• Decision Date: 09 April 1976
• Citation: 85 Misc.2d 1071,382 N.Y.S.2d 430
• Parties: Sam S. CICERALE v. Elvira CICERALE.
• Court: New York Supreme Court

Page 430

382 N.Y.S.2d 430

85 Misc.2d 1071

Sam S. CICERALE v. Elvira CICERALE.

Supreme Court, Special Term, Queens County, Part 5.

April 9, 1976.

Franklin Rand Weiss, Corona, for plaintiff.

Martin & Filipowski, New York City, for defendant.

MEMORANDUM.

HAROLD HYMAN, Justice.

Plaintiff brings this action for a (conversion) divorce allegedly based upon a separation agreement dated April 27, 1965 which, pursuant to an order of the court made by another justice thereof, he was permitted to file 'nunc pro tunc', apparently to comply with section 170(6) of the Domestic Relations Law.

Defendant wife now moves for alimony pendente lite, counsel fees and expenses, exclusive occupancy of the marital abode and to consolidate to and with this action another action brought by plaintiff herein against her in the Civil Court of the City of New York for damages and wherein he has demanded a trial by jury.

It is to be noted that in answer to the complaint for a (conversion) divorce the defendant herein has merely interposed denials, but not an unequivocal denial of the alleged separation agreement having been executed by her; nor has defendant interposed any affirmative defense asserting the rescission or repudiation by her of said agreement even though she denies plaintiff's 'substantial performance' thereof. Likewise, defendant does not affirmatively seek to have the agreement declared rescinded or invalidated for any reason.

Primarily, a wife is not entitled to alimony pendente lite or to counsel fees in a divorce action where the existence of a separation agreement entered into by the parties prior to the commencement of the action for all intents and purposes still exists and makes provision for her support. Where the wife makes no unequivocal declaration in her pleading as to her position with regard to the said agreement, the husband cannot be required to pay alimony pendente lite. (Moat v. Moat, 27 A.D.2d 895, 277 N.Y.S.2d 921.)

Also, this motion, by reason of its nature, brings to the forefront the basic issue of the sufficiency of the complaint and the court's jurisdiction; by reason of the nature of the complaint, it searches the record. If this court lacks jurisdiction, neither party may be entitled to any relief in this action for a (conversion) divorce. It is thus a basic requirement of the court to determine such issue of whether jurisdiction exists in this court over the subject matter involved and as to the sufficiency of the complaint.

Divorce is a creature of the Legislature and the right thereto is purely statutory (Cavallo v. Cavallo, 79 Misc.2d 195, 359 N.Y.S.2d 628; Bishop v. Bishop, 62 Misc.2d 436, 308 N.Y.S.2d 998), for the State, as sovereign, has the absolute right to regulate marriage and divorce within its own sphere of influence (Gleason v. Gleason, 59 Misc.2d 96, 298 N.Y.S.2d 375, revd. 32 A.D.2d 402, 302 N.Y.S.2d 857, revd. 26 N.Y.2d 28, 308 N.Y.S.2d 347); and the State may enlarge or restrict the grounds or basis for divorce as it sees fit (Gleason v. Gleason, supra).

It is in light of the above that our Legislature enacted more liberal grounds for divorce when it enacted section 170(6) of the Domestic Relations Law, wherein it provided that:

'An action for divorce may be maintained * * * to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

'(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto And acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by The plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement Shall be filed in the office of the clerk of the county wherein either party resides * * *.' (Emphasis supplied.)

It is the opinion of this court that the Legislature intended a form of 'no fault' divorce (Schine v. Schine, 31 N.Y.2d 113, 335 N.Y.S.2d 58, 286 N.E.2d 449), but only upon due compliance with the statutory jurisdictional requirements for its obtainment; that one of the basic jurisdictional requirements, as thus provided, is that the separation agreement be 'acknowledged or proved in the form required to entitle a deed to be recorded'. (Emphasis supplied.)

The directive is clear and unequivocal. Certainly the Legislature had other options open to it, but it did not accept or use such other options. Had the Legislature intended a mere signed or subscribed agreement, it would have been simple merely to provide so, or at least not to have mandated that it be 'acknowledged or proved in the form Required to entitle a deed to be recorded'. (Emphasis supplied.)

Could the agreement in question herein be recorded? This court holds that it could not.

Section 291 of the Real Property Law provides that:

'A conveyance of real property, within the state, on being duly acknowledged by the person executing the same, or proved as required by this chapter * * * may be recorded * * *.'

The courts have held that a document purporting to be or to grant conveyance rights which is not acknowledged cannot be recorded as a conveyance. (Newpar Estates, Inc. v. Barilla, 4 A.D.2d 186, 164 N.Y.S.2d 132, app. granted 4 A.D.2d 830, 166 N.Y.S.2d 304; People ex rel. Oaklawn Corp. v. Donegan, 226 N.Y. 84, 123 N.E. 71; Rogers v. Pell, 154 N.Y. 518, 49 N.E. 75.) In Sobel v. Wolf, Sup., 216 N.Y.S.2d 132 the defendant had interposed a counterclaim seeking to expunge a mortgage which had been previously recorded but which had not been acknowledged when thus recorded; the court held such counterclaim to be sufficient since it appeared that the signature on the instrument had not been acknowledged to a Notary Public and therefore said instrument had been improperly recorded.

Yet section 291 of the Real Property Law also speaks alternatively regarding 'acknowledgment', providing another way instead of the party's own acknowledgment, stating 'or Proved as required by this chapter.' (Emphasis added.) The question of what the Legislature meant by such alternative proof is contained in section 292 of Article 9 of the Real Property Law, which provides:

'Except as otherwise provided by this article, such acknowledgment...