Collins v. Johnson
| Decision Date | 23 February 1973 |
| Parties | Marian S. COLLINS, Plaintiff, v. Richard A.M.C. JOHNSON, Defendant. Special Term, Part I |
| Court | New York City Court |
O'Brien, Raftery, Rosenbloom & Grainger, New York City (Robert E. Stern and William C. Perrin, New York City, of counsel), for plaintiff.
Max Solorsy, New York City, for defendant.
We learned from the United States Supreme Court (Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, and Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456) that economically speaking and from the support point of view a husband can have two wives at a time. This case demonstrates that economically speaking a wife can have two husbands at a time, even where, as here, an inducement to the creation of Husband I's support obligation included an interspousal bargain for an immediate divorce.
Twenty three years to the day after their marriage in 1944 and on June 9, 1967, plaintiff and her former husband entered into a separation agreement providing for her support at the rate of $1,000.00 per month for life or until she remarried. Shortly thereafter and on August 29, 1967, the then still married parties exeuted an amendment to that agreement reaffirming that provision for support, and further providing that if plaintiff wife would at any time remarry defendant husband would continue support payments during the lifetime of the wife but at a reduced rate of $500.00 per month. Two days later and on August 31, 1967, based upon the personal appearance of defendant husband and the appearance by counsel of plaintiff, the First Civil Court for the Bravos District, Chihuahua, Mexico, issued its decree of divorce explicitly incorporating by reference the agreement and its August amendment without merger. Defendant contends that considerable pressure attended the execution of the amendment, since he was under the impression that the Mexican State of Chihuahua was going out of the divorce business one day later on September 1, 1967. (It did, but some three years later, in November 1970). That some additional pressure existed is evidenced from defendant's almost immediate remarriage after the Mexican divorce decree issued.
In July 1970 plaintiff remarried, and defendant made the $500.00 monthly payments through April 1972, but refused to continue thereafter. This lawsuit to enforce the payments followed, and both sides move for summary judgment, the husband counterclaiming to recover the allegedly illegal payments already made.
General Obligations Law Sec. 5--311, as amended effective April 27, 1966, provides that any agreement between husband and wife shall not be considered 'a contract to alter or dissolve the marriage (and therefore illegal) unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds for divorce.' This statutory amendment was directed at dismantling the ticking bombshell of Viles v. Viles, 14 N.Y.2d 365, 251 N.Y.S.2d 672, 200 N.E.2d 567, and its progeny (Fisher v. Fisher, 43 Misc.2d 905, 252 N.E.2d 643; Taylor v. Renzi, 41 Misc.2d 160, 245 N.Y.S.2d 456). These decisions had cast uncertainty upon the legality, (by reason of possible collusion) of Any separation agreement closely followed by the dissolution of the marriage. Although defendant urges that Viles, supra, still has sufficient vitality left to interdict this particular post marriage support provision extracted on the eve of a Mexican divorce, the court must disagree. Absent an express recital of consideration to procure a divorce within the four corners of the agreement or its amendment, the inquiry of the court must end (Rosen v. Goldberg, 23 N.Y.2d 791, 297 N.Y.S.2d 298, 244 N.E.2d 869; Gunter v. Gunter, 20 N.Y.2d 883, 285 N.Y.S.2d 855, 232 N.E.2d 853).
The now defunct Viles doctrine to one side, defendant argues in the alternative that there is something morally repugnant in permitting a woman to enjoy support payments from one man while living with another. If the question were an open one in this age of feminine liberation there might be some force in the contention. Unfortunately for defenda...
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Culhane v. Culhane
... ... Collins v. Johnson, 72 Misc.2d 1034, 341 N.Y.S.2d 214, 216 Aff'd, 75 Misc.2d 489, 348 N.Y.S.2d 136 (1973). An "alleged 'collateral oral agreement', even if ... ...
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Alexandre v. Davis
...a husband to make alimony payments after his wife's remarriage to another is enforceable and is not against public policy. (Collins v. Johnson, supra). As that case notes, the law is well settled that in the absence of a provision in the separation agreement terminating the husband's obliga......
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Jessup v. Weir
...that the modification agreement violates General Obligations Law § 5-311, and find them to be without merit (see, Collins v. Johnson, 72 Misc.2d 1034, 1035, 341 N.Y.S.2d 214, affd 75 Misc.2d 489, 348 N.Y.S.2d 136; Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804, affd 23 N.Y.2d 791, 297 ......
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Scibetta v. Scibetta-Galluzzo
...on other grounds 57 A.D.2d 764, 394 N.Y.S.2d 559, appeal dismissed 42 N.Y.2d 965, 398 N.Y.S.2d 148, 367 N.E.2d 654; Collins v. Johnson, 72 Misc.2d 1034, 341 N.Y.S.2d 214, affd. 75 Misc.2d 489, 348 N.Y.S.2d 136). It is, however, a matter of public policy that a spouse, upon remarriage, may n......