Denberg v. Frischman

• Decision Date: 28 April 1966
• Parties: , 217 N.E.2d 675 Jerome A. DENBERG, Respondent, v. Edna R. D. FRISCHMAN, Defendant-Appellant and Third-Party Plaintiff, Annette FRISCHMAN et al., Third-Party Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 627

270 N.Y.S.2d 627

17 N.Y.2d 778, 217 N.E.2d 675

Jerome A. DENBERG, Respondent, v. Edna R. D. FRISCHMAN, Defendant-Appellant and Third-Party Plaintiff, Annette FRISCHMAN et al., Third-Party Defendants.

Court of Appeals of New York.

April 28, 1966.

Appeal from Supreme Court, Appellate Division, First Department, 24 A.D.2d 100, 264 N.Y.S.2d 114.

Louis A. Breslerman, Brooklyn, for appellant.

Garry G. Blaustein, Brooklyn, for respondent.

Order affirmed upon the opinion at the Appellate Division, without costs.

Plaintiff, former husband of defendant, brought action for judgment declaring that his obligations to defendant under separation agreement, which provided that obligations were to continue so long as she did not remarry, were terminated by reason of her subsequent marriage to another man. The defendant alleged, as a defense and first counterclaim, that subsequent to her marriage to the other man, his former wife instituted an action in New Jersey for a judgment declaring the nullity of a Mexican divorce obtained by him from her and the nullity of his subsequent marriage to the defendant, and that the other man's former wife obtained such declaratory judgment, and that therefore defendant had not remarried within meaning of the separation agreement.

The Supreme Court, Special Term, New York County, Abraham N. Geller, J., entered an order denying a motion by the plaintiff for summary judgment, and the plaintiff appealed.

The Appellate Division entered an order which reversed, on the law, the order of the Special Term, granted the plaintiff's motion for summary judgment, and severed the action as to the second counterclaim, and held that plaintiff's obligations under the separation agreement terminated on defendant's marriage to the other man and were not revived when her marriage to the other man was nullified by the New Jersey court.

The defendant appealed to the Court of Appeals.

DESMOND, C.J., and FULD, VAN VOORHIS, BURKE and SCILEPPI, JJ., concur.

KEATING, J., dissents in the following opinion in which BERGAN, J., concurs.

KEATING, Judge (dissenting).

The plaintiff seeks a declaration that he is no longer bound to support his former wife pursuant to the terms of a separation agreement, and that she must relinquish her rights as beneficiary of certain life insurance policies pursuant to the same agreement, on the ground that his obligations continued only 'so long as she (did) not remarry'.

The wife--who concededly took part in a subsequent Ceremonial marriage--argues that since that marriage was absolutely void, and declared to be so in New Jersey, she was never remarried and is entitled to continue receiving support under the agreement from her former spouse.

That is the substance of the respective contentions, but for convenience, these further facts are set forth.

The separation agreement was made in May, 1961. Later in the same month, plaintiff obtained a Mexican divorce from defendant.

Two weeks thereafter, plaintiff married his next-door neighbor, herself the recent recipient of a divorce.

In January, 1964 defendant married one Seymour Frischman, who also held a Mexican decree of divorce. Frischman, however, was either less careful or less fortunate, or both. In July, 1964, his 'former' wife, incidentally the plaintiff's sister, obtained a decree in the New Jersey Supreme Court declaring his Mexican divorce from her invalid and of no effect. Thereafter, Frischman was convicted of bigamy. Although not a party to any of these proceedings, defendant, of course, found herself unmarried to Frischman and financially spurned by plaintiff.

This same problem has been here before, but with one significant difference. In Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501, on the same facts, we held that the husband's obligations were revived after judicial annulment of the purported remarriage.

Subsequently, in Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, 48 A.L.R.2d 312, again on the same facts, we held that the husband's duties were not revived.

The different result was accounted for by a change in the statutory law. In the period between the Sleicher and Gaines decisions (supra), New York adopted section 1140--a of the Civil Practice Act (now Domestic Relations Law, Consol.Laws, c. 14, § 236) which permits the court in an annulment action to 'direct the husband to provide suitably for the support of the wife.' Thus, we said in Gaines: 'Today, through the operation of section 1140--a, the wife can receive support from the husband of the annulled marriage, where 'justice requires,' and there is no more reason to revive the obligation of the first husband--a stranger to the annulment--than there would be if the remarriage were terminated by divorce.' (308 N.Y. 218, 224, 124 N.E.2d 290, 294.)

The present case is Sleicher all over again, with the added fact that we now have section 236 of the Domestic Relations Law and the Gaines decision, though neither is of any avail whatever to the plaintiff--unless Gaines overruled Sleicher rather than merely distinguished it. The majority now holds that Gaines did overrule Sleicher, and it is with that conclusion that I disagree.

In New Jersey, where Frischman's marriage to defendant was declared a nullity, and where Frischman and the defendant now reside, there is no statutory equivalent to section 236 of the Domestic Relations Law, and the defendant cannot obtain support from Frischman. (Minder v. Minder, 83 N.J.Super. 159, 199 A.2d 69 (1964).) In short, the New Jersey law is the same as our law was at the time Sleicher was decided, and we are again presented with a Sleicher situation.

The question is whether Gaines mandates a different result, despite the fact that its rationale falls in the absence of an appropriate statute. I think it does not.

Special Term held that Gaines did not apply in the circumstances and denied summary judgment. The Appellate Division, on the other hand, gave Gaines a broad interpretation, held that it did apply, reversed Special Term, and granted plaintiff's motion for summary judgment.

In the final analysis, we are required to determine whether, as a matter of policy, greater emphasis should be placed on the wife's right to assured support from her former husband, or whether it is preferable to allow the husband, once Apparently free of the support obligation, to remain free of that obligation forever.

We have already made it quite clear that the answer does not turn on whether the wife's 'remarriage' is void, or merely voidable. In Sleicher, the...