Hedaya v. Hedaya

• Decision Date: 10 December 1969
• Citation: 327 N.Y.S.2d 720,68 Misc.2d 165
• Parties: Caroll HEDAYA v. Joseph HEDAYA et al.
• Court: New York Supreme Court

Page 720

327 N.Y.S.2d 720

68 Misc.2d 165

Caroll HEDAYA v. Joseph HEDAYA et al.

Supreme Court, Special Term, Kings County, Part V.

Dec. 10, 1969.

Erdheim & Shalleck, New York City, Irving I. Erdheim, New York City, of counsel, for plaintiff.

Benjamin Wyle and Mendel Zucker, New York City, for defendant.

MEMORANDUM

CARMINE A. VENTIERA, Justice.

Upon the trial of this action for divorce, the plaintiff, having discontinued a second cause, proceeded on the ground of living apart for two years pursuant to a judgment of separation in her favor (Domestic Relations Law 170, subd. (5)). Satisfactory proof having been presented, judgment of divorce is granted to the plaintiff.

The complaint sets forth a third cause of action demanding the sum of $173.26 upon an unrepaid loan made to the defendant in October, 1962. A fourth cause of action demands the sum of $1,044.07 upon a loan made in December, 1962. The plaintiff's testimony with respect to these two causes of action was unopposed. Defendant's counsel has submitted a letter dated November 19, 1969 (Court's Ex. 1) indicating that he does not contest these claims. Accordingly, the court grants judgment to the plaintiff as demanded on the third and fourth causes of action.

The prior judgment of separation, entered April 24, 1964, had fixed support at $200 a week for the plaintiff and four children. The plaintiff was granted exclusive possession of the home and the defendant was directed to pay for the monthly carrying charges and structural repair thereof. Practically all personal property in the home was awarded to the plaintiff, and the defendant was required to maintain in force a life insurance policy designating the plaintiff and children as the beneficiaries.

It is established that in the prior action for separation an oral stipulation was placed on the record and that the terms of the stipulation were then embodied in the judgment. The defendant contends that the stipulation became an enforceable contract. (See Bond v. Bond, 260 App.Div. 781, 24 N.Y.S.2d 169; Ariel v. Ariel, 5 A.D.2d 168, 171 N.Y.S.2d 138.) He contends further that in the absence of a showing of intent that it be merged in the judgment, the agreement will survive (Jaeckel v. Jaeckel, 179 Misc. 994, 40 N.Y.S.2d 491; In re Silvers' Estate, 24 Misc.2d 939, 201 N.Y.S.2d 415; In re Nichols' Estate, 201 Misc. 922, 107 N.Y.S.2d 311; In re Van Arsdale's Will, 190 Misc. 968, 75 N.Y.S.2d 487); and that the agreement may not normally be modified by the court (Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Schmelzel v. Schmelzel, 287 N.Y. 21, 38 N.E.2d 114).

The question of merger or survival of an agreement as a basis for an action on a contract is not now before the court. The bone of contention in this case is whether there was an antecedent separation agreement such as would ordinarily be determinative of the level of support. If the agreement merged in the judgment, modification in proper circumstances is possible. 'Of course, where there is a merger or incorporation of the earlier agreement into the judgment there is no doubt at all of the court's full power to deal with alimony in the original decision or on modification.' (McMains v. McMains, 15 N.Y.2d 283, 287, 258 N.Y.S.2d 93, 98, 206 N.E.2d 185, 188.) (See, also, Goldman v. Goldman, Supra, and Schmelzel v. Schmelzel, Supra, citing Fox v. Fox, 263 N.Y. 68, 188 N.E. 160.)

The record in the previous action for a separation does not contain a provision that the stipulation was intended to survive the judgment. It appears that the stipulation was entered into after the action was commenced, put on the record in lieu of the evidence, subject to approval by the court, and that some part of it may have already been executed. 'If that is the correct view, then the terms of the contract still executory became merged in the the judgment.' (Kunker v. Kunker, 230 App.Div. 641, 645, 246 N.Y.S. 118, 124.) Further, in 1967, upon plaintiff's application for modification of support under the decree of separation, it does not appear that the defendant raised an issue of an antecedent separation agreement as a bar.

The court, in finding no contract as a bar to a determination of support, will nevertheless regard the award made in the prior action as properly founded on the then pre-separation living standards of the parties. The plaintiff was at that time, as well as now, ably represented by counsel. She was apparently well informed as to the defendant's financial capabilities and satisfied that the stipulation conformed to her pre-separation standard of living. There is no proof of overreaching, fraud or concealment on the part of the defendant, and the stipulation was in lieu of evidence and served as a basis for the court's findings and award. In fixing alimony and support anew, the court will consider the pre-separation standard of living, the effect of changed conditions since the prior award, and the defendant's ability to pay.

The parties were given every opportunity to adduce their evidence. It appears that the prior award, some six and one-half years ago, was based upon the defendant's earnings of approximately $20,000 per annum. He was then a partner in a firm which paid his income tax in addition to his salary. The firm also provided him with an expense...