Harris v. Harris

• Decision Date: 29 June 1957
• Citation: 8 Misc.2d 198,165 N.Y.S.2d 846
• Parties: Helen HARRIS, Plaintiff, v. Lloyd D. HARRIS, Defendant.
• Court: New York Supreme Court

Page 846

165 N.Y.S.2d 846

8 Misc.2d 198

Helen HARRIS, Plaintiff, v. Lloyd D. HARRIS, Defendant.

Supreme Court, Dutchess County.

June 29, 1957.

J. Thomas Dietz, Poughkeepsie, for plaintiff.

Edward J. Kovacs, Poughkeepsie, for defendant.

EAGER, Justice.

There are before this Court two motions by plaintiff, one to strike out the several affirmative defenses set forth in defendant's answer as insufficient on the face thereof, and the other for summary judgment in plaintiff's favor. The motions are consolidated, and one order shall be entered in accordance herewith.

The first defense is stricken. The allegations therein contained are merely conclusory without a setting forth of proper allegations factually showing payment or discharge. The second and fourth defenses are stricken. The allegations of these defenses are also purely conclusory in nature and there is nothing set forth therein by way of ultimate fact tending to defeat the alleged cause of action. The fifth defense is stricken as not in accordance with the law. The Courts of this state do recognize the validity of divorces obtained in foreign states upon grounds other than the commission of adultery by a defendant. The third and sixth defenses are deemed sufficient and may stand.

The plaintiff's motion for summary judgment is denied.

There are a number of decisions in this state supporting a holding that accrued alimony and support payments owing under the terms of a valid Florida decree of divorce are a 'debt of record' recoverable by action here. See, for instance, Moore v. MacKay, Sup., 132 N.Y.S.2d 813; Stern v. Stern, Sup., 132 N.Y.S.2d 817; Ikalina v. Andres, City Ct., 159 N.Y.S.2d 799; Maedell v. Maedell, Sup., 122 N.Y.S.2d 838; Smith v. Smith, 255 App.Div. 652, 9 N.Y.S.2d 188; Nichols v. Nichols, 306 N.Y. 490, 498, 119 N.E.2d 351, 354; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905. However, there is a question in the case at bar whether or not there is, in fact, anything due and owing to plaintiff by virtue of the terms of the Florida decree rendered December 26, 1951, and the order of September 25, 1956, modifying the same. The parties, prior to the bringing of the action resulting in the divorce decree entered into a separation agreement and a property settlement agreement, and these agreements were, by the terms of the decree expressly 'ratified and approved by the Court, and are incorporated in and made a part of this decree for the purposes expressed in said agreement.' Thus, the terms of said agreements are continued in full force and effect and are binding on the parties and on this Court. See, Rehill v. Rehill, 306 N.Y. 126, 116 N.E.2d 281. It was provided by the separation agreement 'That so long as the Second Party (wife--the plaintiff here) shall fully keep, observe and perform the terms, provisions, covenants and conditions hereof to be kept, observed, and performed by her, the First Party (husband--the defendant here)' should make the monthly payments to the plaintiff (wife) for her support and maintenance and for the support and maintenance of the children....