Ehrler v. Ehrler

• Decision Date: 08 February 1972
• Docket Number: V--A
• Citation: 69 Misc.2d 234,328 N.Y.S.2d 728
• Parties: Dorothy Jean EHRLER, Plaintiff, v. Reger Raymond EHRLER, Defendant
• Court: New York Supreme Court

Page 728

328 N.Y.S.2d 728

69 Misc.2d 234

Dorothy Jean EHRLER, Plaintiff, v. Reger Raymond EHRLER, Defendant.

Supreme Court, Special Term, Nassau County, Part V--A.

Feb. 8, 1972.

Dawson & Schwartz, Mineola, for plaintiff; by John B. Dawson, Jr., mineola.

MEMORANDUM

BERNARD S. MEYER, Justice.

In this undefended matrimonial action, plaintiff asked for judgment requiring defendant to continue in force certain policies of insurance on his life. Doubting its authority to make such a decree, the court reserved decision on the question. It now concludes that, though the matter is as to support for the children not wholly free from doubt, it is without authority, absent an agreement between the parties, to make a judgment requiring defendant, whether as alimony or as support for the children, to maintain life insurance in force.

Authority to make an award of alimony or of child support in a matrimonial proceeding is derived from statute, not from the common law, Kagen v. Kagen, 21 N.Y.2d 532, 289 N.Y.S.2d 195, 236 N.E.2d 475; Romaine v. Chauncey, 129 N.Y. 566, 571, 29 N.E. 826, 827; Erkenbrach v. Erkenbrach, 96 N.Y. 456; Rice v. Andrews, 127 Misc. 826, 217 N.Y.S. 528. Except in an action for an annulment for incurable insanity, with respect to which Dimestic Relations Law § 141(1) requires that the court 'include in the judgment an order directing the husband to provide for her suitable support, care and maintenance during life' of the wife, see Stevens v. Peoples Bank of Hamburg, N.Y., 246 App.Div. 481, 284 N.Y.S. 929, the alimony and support sections of the Domestic Relations Law (§§ 236, 140) contain no language expressly authorizing continuance of alimony after the death of the husband or child support after the death of the father. Absent such express statutory provision, or agreement of the parties that the allowance be a charge against the husband's estate after his death, an award whether of alimony or child support terminates on the husband's death, Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236; Johns .v Johns, 44 App.Div. 533, 60 N.Y.S. 865, affd. on opinion below 166 N.Y. 613, 59 N.E. 1124; Matter of Van Arsdale, 190 Misc. 968, 75 N.Y.S.2d 487; Rice v. Andrews, 127 Misc. 826, 217 N.Y.S. 528. Such being the usual rule, and the premiums on life insurance being paid to provide not the 'present maintenance' (Kirbride v. Van Note, 275 N.Y. 244, 249, 9 N.E.2d 852, 854; see also Van Ness v. Ransom, 215 N.Y. 557, 560, 109 N.E. 593, 594; Matter Williams, 208 N.Y. 32, 38, 101 N.E. 853, 854) which the statutory provisions are designed for, but maintenance after the husband's death, judgment requiring payment of life insurance premiums is held not to fall within the 'support' authorized by § 236 or the 'care, education and maintenance' authorized by § 240 to be awarded by the court, Ostrom v. Ostrom, 270 App.Div. 872, 61 N.Y.S.2d 775; see Edelman v. Edelman, 19 A.D.2d 613, 241 N.Y.S.2d 92; Mercier v Mercier, 18 A.D.2d 880, 237 N.Y.S.2d 428; Mack v. Mack, 16 A.D.2d 1029, 230 N.Y.S.2d 112; cf. Staton v. Staton, Sup., 143 N.Y.S.2d 369, n.o.r.

Such were not always the statutory provisions, however, and it is as a result of cases construing the earlier statutes that doubt now arises with respect to Domestic Relations Law § 240. Section 54 of the Revised Statutes authorized the making of a decree in an action for a separation 'for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or Out of his property' (emphasis supplied) and similar language was contained in Section 55, also relating to separation actions. Under those Sections it was held in Burr v. Burr, 10 Paige 20, 37, that a decretal provision for alimony continuing beyond the life of the husband was authorized, and on appeal that determination was affirmed, 7 Hill 207. Similar holdings may be found in Peckford v. Peckford, 1 Paige 274, and Forest v. Forest, 3 Abb.Pr. 144, 167.

The Burr case was urged in Wilson v. Hinman, supra, as authority for the proposition that alimony beyond the life of the husband could be decreed, but was held not controlling on several grounds. The first was that the Burr case arose under a statute providing for support 'by the husband, 'or out of his property" whereas C.C.P. 1759(2) which governed the Wilson case authorized 'support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties.' The latter provision, it was held, empowered the court 'only to impose a personal obligation upon the defendant', Wilson v. Hinman, supra, at p. 413, 75 N.E. at p. 238; and see Rice v. Andrews, 127 Misc. 826, 217 N.Y.S. 528. Moreover, said the Wilson court 'the authority of Burr v. Burr has been much shaken, if not entirely overthrown, by the recent decision of this court in Johns v. Johns, 166 N.Y. 613, 59 N.E. 1124; affirmed on opinion below 44 App.Div. 533, 60 N.Y.S. 865', Wilson v. Hinman, supra, at p. 413, 75 N.E. at p. 238. Since the wording of C.C.P. 1759(2) is almost identical with wording in the first sentence of Domestic Relations Law § 236, the Wilson case requires that the latter section be construed as imposing only a personal obligation upon the defendant, and as not authorizing alimony continuing beyond the life of defendant husband.

The situation is not so clear, however, with respect to Domestic Relations Law § 240, which in its first sentence incorporates language similar to that of C.C.P. 1759(2) and Domestic Relations Law § 236, but in its third sentence authorizes 'provision for the education and maintenance of such child Out of the property of either or both of its parents' (emphasis supplied). Notwithstanding the use of the italicized phrase and even if it be assumed that the Burr case has not been 'entirely overthrown', the court concludes from the history of Section 240 that it should not be construed to authorize a judgment in an action for separation or divorce requiring support of a child out of the estate of a deceased parent. Support awards were authorized by statutes incorporated in the Revised Statutes of 1828 in the following cases:--in an action for annulment, a decree providing for the children's 'education and maintenance, out of the estate and property of the guilty party', 2 R.S. 143, § 32; in an action for divorce, a decree 'against the defendant, compelling him to provide for the maintenance of the children of the marriage, and to provide such suitable allowance to the complainant, for her support, as the court shall deem just, having regard to the circumstances of the parties respectively', 2 R.S. 145, § 45; in a separation action, as already noted § 54 (2 R.S. 147) provided for a decree 'for the suitable support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper'; § 55 contained similar language; and § 59 provided that in an action for separation or divorce the court 'may, during the pendency of the cause, or at its final hearing, or after wards, . . . make such order as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper . . .' Thus, the...