Harges v. Harges

Decision Date07 July 1965
Citation46 Misc.2d 994,261 N.Y.S.2d 713
PartiesMary Frances HARGES, Plaintiff, v. Michael Theophilos HARGES, Defendant.
CourtNew York Supreme Court

Alfred Feingold, Glen Head, for plaintiff.

Taylor & Ostrow, Mineola, for defendant.

BERNARD S. MEYER, Justice.

In this action plaintiff wife seeks to set aside a Mexican divorce obtained by defendant on February 26, 1962 and a separation agreement executed February 20, 1962 and to obtain a separation. Defendant husband's answer sets up affirmative defenses of laches and estoppel and specifically pleads that a prior separation action between the parties was tried for eight days between February 7th and 19th, 1962 before Mr. Justice Gulotta, that during the course of that trial a settlement was reached, that plaintiff voluntarily executed a power of attorney for a Mexican divorce by reason of which defendant obtained a valid bilateral Mexican decree of divorce. Plaintiff now moves to strike the latter allegations as prejudicial and for judgment dismissing the defenses. Defendant cross- moves to dismiss on the grounds that there is, in view of the Mexican divorce, no jurisdiction of the subject matter and that the complaint fails to state a cause of action. Defendant also asks summary judgment. For the reasons hereafter stated plaintiff's motion is in all respects denied and defendant is granted judgment dismissing the complaint.

The thrust of plaintiff's action is two-pronged:--(1) that execution of the power of attorney was a condition of execution of the separation agreement and, therefore, both were and are void as against public policy; (2) that her condition at the time the separation action was tried was such and defendant made such threats on the one hand and so concealed his financial position on the other that she did not knowingly sign the separation agreement and power of attorney, which were rather the result of defendant's fraud, duress and over-reaching. In the face of such charges the setting in which the documents were executed is of particular significance. Evidence concerning the prior trial before Mr. Justice Gulotta will, therefore, be admissible. While it was not essential to plead the background facts in as much detail as defendant's answer does, it was natural to do so in response to a similarly detailed complaint. The facts alleged are part of the tapestry against which decision must be made. The motion to strike them as prejudicial must, therefore, be denied.

The motion to dismiss the defenses is predicated on the public policy enunciated by General Obligations Law, § 5-311 (formerly Domestic Relations Law, § 51) against contracts to dissolve a marriage. However, that policy yields the estoppel by judgment, whether the judgment be that of another state of the United States or of Mexico, Fink v. Goldblatt, 18 A.D.2d 629, 235 N.Y.S.2d 56, affd. 13 N.Y.2d 957, 244 N.Y.S.2d 457, 194 N.E.2d 423 (Mexican decree); Fry v. Fry, 279 App.Div. 122, 108 N.Y.S.2d 227, affd. 304 N.Y. 889, 110 N.E.2d 501 (Nevada decree); McLinden v. McLinden, 286 App.Div. 1033, 146 N.Y.S.2d 679, app. denied 286 App.Div. 1105, 146 N.Y.S.2d 679 (Mexican decree); Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717 (Nevada decree; Hoyt v. Hoyt, 265 App.Div. 223, 38 N.Y.S.2d 312, mot. for lv. to app. denied 290 N.Y. 931, 48 N.E.2d 714 (Nevada decree); Fales v. Fales, 160 Misc. 799, 290 N.Y.S.2d 655, affd. 250 App.Div. 751, 295 N.Y.S. 754 (Nevada decree); Neuman v. Neuman, 44 Misc.2d 232, 253 N.Y.S.2d 405 (Mexican decree). A fortiori it will yield to the equitable estoppel which defendant pleads: that he remarried in reliance on the Mexican decree in October, 1964, two and one-half years after the decree was obtained and that plaintiff did nothing to question the validity of the divorce until this action was begun March 5, 1965, some six months after the marriage. A 'spouse who by acts indicates acquiescence in the divorce and so induces the other spouse to act upon the assumed validity of the decree cannot be heard to contest it', Weiner v. Weiner, 13 A.D.2d 937, 216 N.Y.S.2d 788, mot. for lv. to app. denied 14 A.D.2d 671, 219 N.Y.S.2d 944; Schneider v. Schneider, 232 App.Div. 71, 249 N.Y.S. 131, on second appeal 238 App.Div. 792, 262 N.Y.S. 905, affd. 263 N.Y. 641, 189 N.E. 736; Schuman v. Schuman, Sup., 137 N.Y.S.2d 485, n. o. r.; Dodge v. Dodge, 98 App.Div. 85, 90 N.Y.S. 438; cf. Rosenstiel v. Rosenstiel, 21 A.D.2d 635, 639, 253 N.Y.S.2d 206, 210 (concurring opinion). The defenses are, therefore, sufficient. Indeed, though it is not necessary so to hold in view of the conclusion hereafter reached, it may well be that on the papers presented on this motion defendant is entitled to summary judgment on the defenses. Although plaintiff's affidavit shows that she knew on September 15, 1964 that he was about to remarry and acknowledges that defendant's attorney in the separation action was under no duty to communicate with defendant 'in view of the fact that their relationship was at an end' and although plaintiff's attorney's affidavit admits that when he communicated with the attorney who represented defendant in the separation action (and has since been retained in this action) he was told flatly that the attorney 'did not intend to do anything about my phone call' neither plaintiff nor her attorney made any effort to communicate with defendant directly, and in fact took no action at all for some six months thereafter.

Jurisdiction of the subject matter exists since the separation agreement is subject to attack as illegal, or because of fraud, duress or overreaching, if the Mexican decree can be set aside, Oppenheimer v. Oppenheimer, 11 N.Y.2d 838, 227 N.Y.S.2d 448, 182 N.E.2d 119; Bunin v. Bunin, 27 Misc.2d 173, 210 N.Y.S.2d 580, and since the Mexican decree may be collaterally attacked if jurisdiction of the Mexican court was acquired through fraud, coercion or duress, Kantrowitz v. Kantrowitz, 21 A.D.2d 654, 249 N.Y.S.2d 723; LaBarr v. LaBarr, 278 App.Div. 995, 105 N.Y.S.2d 743, 744; Averbuck v. Averbuck, 270 App.Div. 116, 58 N.Y.S.2d 392; Prime v. Hinton, 244 App.Div. 181, 279 N.Y.S. 37; Stauffer v. Stauffer, 26 Misc.2d 254, 204 N.Y.S.2d 217; Matter of White v. White, 26 Misc.2d 631, 208 N.Y.S.2d 746; Ticknor v. Ticknor, 23 Misc.2d 257, 200 N.Y.S.2d 661; Towers v. Towers, 21 Misc.2d 56, 195 N.Y.S.2d 556. Neither the parol evidence rule, Niman v. Niman, 15 Misc.2d 1095, 181 N.Y.S.2d 260, affd. 8 A.D.2d 793, 188 N.Y.S.2d 948; see Viles v. Viles, 14 N.Y.2d 365, 251 N.Y.S.2d 672, 200 N.E.2d 567; nor the general merger clause in the separation agreement entered into by the parties, Sabo v. Delman, 3 N.Y.2d 155, 164 N.Y.S.2d 714, 143 N.E.2d 906; cf. Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 184 N.Y.S.2d 599, 157 N.E.2d 597; Carlinger v. Carlinger, 21 A.D.2d 656, 249 N.Y.S.2d 761, would exclude extrinsic evidence to establish its invalidity by reason of fraud, duress or illegality, Richardson, Evidence (9th Ed.) §§ 586, 586a, 587.

Plaintiff's claim of fraud is predicated on defendant's failure to disclose the value of his interest in certain corporations which it is claimed he later sold for $1,500,000. and on overreaching in that the separation agreement made no provision for her support after defendant's death or with respect to income taxes that would be payable on the amounts she received under the agreement, and made inadequate provision for her medical expenses. The transcript of the separation trial, however, shows that on the opening day of the trial defendant's counsel took the position 'that the good will of the corporations plays no part in this case' and argued as follows:

'Now I respectfully submit it is improper for the plaintiff to inquire into the financial worth and assets of the defendant in order to determine the proper measure of support for alimony, where there is no question raised by the husband with regard to the sufficiency of his income. All of this argument, of course presupposes a finding in favor of the wife, which we are not conceding at this time. In any event, there is required support for the children, so to some extent this must be gone into no matter what we do, or whatever the finding is by your Honor, but the question involved here basically is going to be are we confined to the standard of living that the parties enjoy, and the defendant raises no question about his ability to pay whatever your Honor shall determine, or may the plaintiff go into the assets of the defendant in this case?

'Now, if we are confined to the first part of this, then anything having to do with the corporations is completely superfluous. In fact, anything having to do with the assets of the parties is completely superfluous, because of the fact that the defendant states now, for the record, that he is capable of paying whatever your Honor determines should be paid in keeping with the standard of living that the parties enjoy, if your Honor should find it reasonable. We say that it is within the income of the husband and that he is capable of paying. We say further that it is proper to make full inquiry into what that standard of living was in order to determine what it should be; but, we say, to go further and inquire into assets is needless and improper, because there is no such issue in this case, and whether this man be worth $5 or five million plays no part in this Court's determination, respectfully, we say, since we raise no issue as to his ability to pay.'

The claim that defendant concealed his financial position is thue negated by the trial record in the separation action. In the face of the flat statements on defendant's behalf that 'there is no question raised by the husband with regard to the sufficiency of his income', 'no question about his ability to pay whatever your Honor shall determine' and 'we raise no issue as to his ability to pay', no triable issue exists as to the claim of fraudulent...

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7 cases
  • Natchez v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 15, 1983
    ...the validity of the agreement," rendering the agreement valid and fully enforceable under New York law. Harges v. Harges, 46 Misc.2d 994, 1002, 261 N.Y.S.2d 713, 721 (Sup.Ct.1965); Cohen, Separation Agreements and Extraterritorial Divorces, 22 Bar.Bull. New York County Lawyers' Assn. 174, 1......
  • Alexandre v. Davis
    • United States
    • New York Supreme Court
    • January 19, 1976
    ...seek to set aside the Mexican decree and is accordingly precluded from attacking the agreement incorporated therein. (Harges v. Harges, 46 Misc.2d 994, 261 N.Y.S.2d 713; Werber v. Werber, 47 Misc.2d 399, 262 N.Y.S.2d 679; Fitzgerald v. Morgenstern, 48 Misc.2d 575, 265 N.Y.S.2d 467; Collins ......
  • Keve v. Steinberg
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    • New York Supreme Court
    • September 21, 1970
    ...304, 29 N.Y.S.2d 102) and the wife may properly seek to modify the agreement for the benefit of the children. See Harges v. Harges, 46 Misc.2d 994, 261 N.Y.S.2d 713; Cohen v. Cohen, 28 Misc.2d 558, 212 N.Y.S.2d 809, and cases cited In 1959, when the male issue of this marriage was four year......
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    • New York City Court
    • June 5, 1969
    ...433; Calderon v. Calderon, 275 App.Div. 251, 88 N.Y.S.2d 886; Hoyt v. Hoyt, 265 App.Div. 223, 38 N.Y.S.2d 312).' In Harges v. Harges, 46 Misc.2d 994, 261 N.Y.S.2d 713, the court dismissed an action by a wife to set aside a Mexican decree of divorce procured by the husband which incorporated......
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