Gunter v. Gunter
| Decision Date | 02 November 1967 |
| Parties | , 232 N.E.2d 853 Herbert GUNTER, Appellant, v. Yvonne GUNTER, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 28 A.D.2d 666, 282 N.Y.S.2d 633.
William M. Stewart, New York City (Samuel Lawrence Brennglass, New York City, of counsel), for petitioner-appellant.
Greenbaum, Wolff & Ernst, New York City (Leo Rosen and Julia Perles, New York City, of counsel), for respondent.
Separation agreement, which contained an arbitration clause, was executed by plaintiff husband and defendant wife on January 18, 1962 and was incorporated in a Mexican divorce decree granted on June 26, 1962. The defendant wife on January 29, 1965 served a demand for arbitration of her claims for arrears allegedly due under the separation agreement. The plaintiff, alleging that the divorce was directly related to and brought about by the separation agreement, sought judgment declaring the agreement to be void as contrary to public policy and demanded a stay of the arbitration.
The General Obligations Law, Consol.Laws, c. 24--A, § 5--311, as amended April 27, 1966, provided that a husband and wife may not contract to alter or dissolve a marriage but that an agreement 'heretofore or hereafter made' between a husband and wife should not be considered violative of the section unless it contains an express provision requiring dissolution of the marriage or provides for procurement of grounds for divorce. The defendant contended that the separation agreement was valid under that statute and that, in any event, the Nexican divorce decree was res judicata, even as to the validity of the separation agreement incorporated therein, citing Fink v. Goldblatt, 13 N.Y.2d 957, 244 N.Y.S.2d 457, 194 N.E.2d 423. The plaintiff, who did not offer to show that the agreement could be collaterally attacked in Mexico, argued that the validity of the Mexican divorce decree did not prevent him from attacking the validity of the separation agreement, and that the General Obligations Law, § 5--311, could not be applied retroactively.
The Supreme Court, Special Term, New York County, Arthur G. Klein, J., entered an order denying a motion by the defendant for judgment on the pleadings pursuant to CPLR 3212 and for summary judgment pursuant to CPLR 3211, subd. a, par. 7.
The Appellate Division entered an order on June 15, 1967 which reversed, on the law, the order of the Special Term and...
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