Freidberg v. Freidberg

• Decision Date: 14 May 1974
• Citation: 360 N.Y.S.2d 527,79 Misc.2d 361
• Parties: * Petitioner, v. Rudolph FREIDBERG,* Respondent. Family Court, City of New York, New York County
• Court: New York City Court

Page 527

360 N.Y.S.2d 527

79 Misc.2d 361

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act Nora FREIDBERG,^* Petitioner, v. Rudolph FREIDBERG,* Respondent Family Court, City of New York, New York County.

May 14, 1974.

Surowitz & Ruskin, New York City, for petitioner.

Stanley E. Kooper, Brooklyn, for respondent.

EDITH MILLER, Judge:

The Petitioner and the Respondent were married on March 16, 1942. On May 1, 1958 they entered into a separation agreement and on May 12, 1959 the parties were divorced in Chihuahua, Mexico. The decree of divorce incorporated by reference the non-merger separation agreement which provided for $260. monthly support for the Petitioner plus $400. on April 1st of each year to cover any taxes due and owing. At this time, the Respondent is current in his payments and there is no need for an order of this Court with respect to enforcement of the contractual agreement. However, it is the contention of the Petitioner that her 'minimal needs' are now $800. per month, that the Respondent's income has increased, and that unless the Court grants an Order in that amount pursuant to Section 466(c) of the Family Court Act that she is in danger of becoming a public charge.

This set of facts requires the application of the rule promulgated by the Court of Appeals in McMains v. McMains, 15 N.Y.2d 283, 284--285, 258 N.Y.S.2d 93, 95, 206 N.E.2d 185, 186, where the court held:

. . . that a separation agreement valid and adequate when made and which contains a nonmerger agreement continues to bind the parties when its terms as to support have been written into a subsequent divorce judgment but that this does not prevent a later modification increasing the alimony when it appears not merely that the former wife wants or by some standards should have more money but that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge.

It may conceivably be argued that, in view of the language used in other portions of McMains, the true criterion conveyed by the decision is inadequacy for basic support, particularly because of conditions of health, together with the absence of other sources. It may be contended further that the phrase 'is in actual danger of becoming a public charge' is intended merely to set forth an A fortiori case for modification and is not intended to preclude modification in other cases where justice may require.

There is some support for these arguments indicated in such cases as Apkarian v. Apkarian, 39 A.D.2d 609, 331 N.Y.S.2d 239 (3rd Dept., 1972) where the court appeared to be ambivalent as to what the McMains standard really was; and in Roscini v. Roscini, 41 A.D.2d 895, 342 N.Y.S.2d 681, where the court held McMains stood for the principle of minimum support.

This Court, however, is of the opinion that the better rule and the weight of opinion, is with those cases that hold McMains to a literal interpretation of the 'public charge' language. See Slocum v. Slocum, 42 A.D.2d 56, 58, 345 N.Y.S.2d 188, 190 (4th Dept., 1973); Chesta v. Chesta, 74 Misc.2d 548, 550, 344 N.Y.S.2d 578, 581 (Fam.Ct., Queens Cty., 1973); Matter of Aranow v. Aranow, 57 Misc.2d 86, 89, 291 N.Y.S.2d 123, 125 (Fam. Ct., Queens Cty.); and most particularly Gardner v. Gardner, 40 A.D.2d 153, 338 N.Y.S.2d 639 (4th Dept., 1972), aff'd 33 N.Y.2d 899, 352 N.Y.S.2d 626, 307 N.E.2d 823. In the latter case, by way of denying modification of the alimony provisions of a Mexican judgment of divorce where the separation agreement was incorporated but not merged, the court held '. . . we are constrained by the language of McMains to hold that, when a valid separation agreement was in effect, Family Court could not find a 'change of circumstances' and a requirement for modification without a showing that petitioner was unable to support herself on the amount allowed and was in actual danger of becoming a public charge.' Id., 40 A.D.2d 155, 338 N.Y.S.2d 641.

It is the judgment of this Court that at the hearing on the merits, Petitioner failed to sustain her burden of proving as part of her prima facie case that she was in such danger of becoming a public charge so as to justify modification. The bulk of Petitioner's claims are predicated on her ill health (special diet, medical bills, inability to maintain employment, etc.). Yet Petitioner failed to introduce satisfactory medical evidence as required by law to support her allegations. The Court further notes that, for a woman without means, and allegedly subject to continued ill health, the Petitioner continued to seek out private medical care and made no attempt to inquire as to her eligibility for medicaid, or to obtain prepaid group health insurance which would have greatly mitigated her medical expenses. At the very least, the Petitioner's failure to pursue or inquire as to the various means of public assistance available to her during the 14 months she has supposedly been in dire need, casts some doubt on her credibility and the true urgency of her circumstances.

Furthermore, Mexico, unlike New York does not permit modification of its decrees. Schoenbrod v. Siegler, 20 N.Y.2d 403, 283 N.Y.S.2d 881, 230 N.E.2d 638; Belt v. Belt, 67 Misc.2d 679, 324 N.Y.S.2d 623. In the Matter herein, Petitioner is asking the court to do what a Mexican Court lacks the power to do. Therefore, in the opinion of this Court, only a plain showing of the need to indemnify the public purse could justify entertaining such modification and Petitioner has failed to establish such need.

Article 1, Section 10 of the United States Constitution provides that no state shall pass any law impairing the obligation of contracts. Prior to the McMains decision, a separation agreement that was...