Daniels v. Daniels

• Decision Date: 15 May 1956
• Parties: Florence DANIELS, Plaintiff, v. E. Lawrence DANIELS, Defendant.
• Court: New York Supreme Court

Page 909

152 N.Y.S.2d 909

Florence DANIELS, Plaintiff, v. E. Lawrence DANIELS, Defendant.

Supreme Court, Special Term, New York County, Part III.

May 15, 1956.

Clarence P. Greer, New York City, for plaintiff.

Polier, Midonick & Armstrong, New York City, for defendant.

HOFSTADTER, Justice.

The plaintiff in this action entered into a separation agreement which was incorporated into a foreign divorce decree in the State of Alabama. The decree was granted on the ground of cruelty. By this same decree the parties were ordered to abide by the agreement the same as if they were set forth in the decree at length. In the present action the plaintiff alleges two causes of action. The first which seeks to compel the defendant to comply with the provisions of the Alabama decree relating to policies of insurance upon his life. By said provision the defendant was required to keep in force three policies of insurance which designated the plaintiff as beneficiary. The second cause of action seeks to secure payments of support for herself and two children under the Alabama decree.

The defendant alleges a modification of the separation agreement which reduced the amount of support and further that the plaintiff has waived any rights she may have under the Alabama decree by going into the Family Court for support. The plaintiff has moved under Rule 112 of the Rules of Civil Practice for judgment on the pleadings on the first cause of action on the ground that the answer is insufficient in law. The defendant has cross moved for judgment on the pleadings on the ground that there is no equitable power in this court with respect to the Alabama decree.

In Chester v. Chester, 171 Misc. 608, 13 N.Y.S.2d 502, 503, the court stated, 'As the foreign decree of divorce was not obtained upon the ground of adultery, it may be enforced in this state only to the extent that a money judgment for arrears of alimony is sought. No equitable relief may be granted even if the foreign decree specifically provides for it. Miller v. Miller, 219 App.Div. 61, 219 N.Y.S. 203, 204, affirmed 246 N.Y. 636, 159 N.E. 681.' Accordingly, the plaintiff's motion for judgment on the pleading is denied and judgment on the pleading granted on the first cause of action to the defendant as indicated in the companion motion.

There is a reservation in the agreement that it should survive the dissolution of the marriage by divorce. If the plaintiff had proceeded upon the agreement rather than upon the...