Hummel v. Hummel

• Decision Date: 30 March 1970
• Citation: 62 Misc.2d 595,309 N.Y.S.2d 429
• Parties: Betty Ann HUMMEL, Plaintiff, v. Carl Henry HUMMEL, Jr., Defendant.
• Court: New York Supreme Court

Page 429

309 N.Y.S.2d 429

62 Misc.2d 595

Betty Ann HUMMEL, Plaintiff, v. Carl Henry HUMMEL, Jr., Defendant.

Supreme Court, Trial Term, New York County, Part VII.

March 30, 1970.

Robert Konove, New York City, for plaintiff.

Joseph A. D'Addario, New York City, for defendant.

MATTHEM M. LEVY, Justice.

(I)

Initially, the complaint set forth but one cause of action--that for a divorce by the plaintiff wife. It was grounded upon the recently enacted section 170(6) of the Domestic Relations Law, which provides that such an action may be maintained when

'The husband and wife have lived separate and apart pursuant to a written agreement of separtation * * * for a period of two years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement.'

The complaint alleged compliance with the requirements above set forth as well as the following additional statutory requisites, which need not be quoted In haec verba: (1) That the agreement of separation be subscribed and acknowledged by the parties on or after April 27, 1966 (the instant agreement was subscribed and acknowledged on December 23, 1966); and (2) that the same be filed in the office of the clerk of the county wherein either party resides (a copy thereof was filed in the Office of the County Clerk of Nassau County on December 27, 1966, which was then the place of residence of both of the parties). The plaintiff further alleged in her complaint that she has duly substantially performed all of the terms and conditions contained in the agreement which were on her part to be performed.

In his answer, the defendant husband admitted all of the material allegations of the complaint, and it is not disputed that the parties had separated for some time prior to, and were living apart at the time of, the execution of the agreement, and that they lived separate and apart and did not cohabit as husband and wife for a period of two years after its execution.

(II)

Prior to the trial, the plaintiff moved at Special Term for, among other things, an allowance of counsel fees to prosecute this action. My learned colleague then presiding denied the application without prejudice to renewal at the trial of the action.

Also, just prior to the commencement of the trial and after the cause had been assigned to me for that purpose, the parties stipulated that the plaintiff's complaint be amended to include a separate cause of action for the arrears of support under the separation agreement and for certain dental expenses incurred by the wife. The monthly support payments to the wife, provided for in the agreement, were discontinued by the husband in December of 1968, and, at the time of the amendment of the complaint, totalled $1,000. The dental charges involved amounted to $110. In order not to proliferate the legal proceedings so as to require other courts or judges to hear and determine the several controversies between these litigants, I accepted the stipulation (see Silverman v. Rogers Imports, Inc., 4 Misc.2d 672, 127 N.Y.S.2d 896 (1954); Grobman v. Freiman, 3 Misc.2d 656, 659, 152 N.Y.S.2d 898, 900 (1956); Farber v. Chein & Co., 13 Misc.2d 158, 160, 177 N.Y.S.2d 324, 327 (1958)).

(III)

The separation agreement provides, in part, that:

'4. The Husband shall (until termination thereof as hereinafter provided (in paragraph 5)), during the joint lives of the parties, pay to the Wife for her support and maintenance the following:

'(a) The sum of $100.00 per month commencing January 1, 1967; and

'(b) All medical and dental expenses incurred by the Wife; * * *'

'5. In the event the Wife remarries, obtains her master's degree or terminates her education (whichever first occurs), all obligations of the Husband hereunder for her support and maintenance shall cease.'

As a part of her cause of action for divorce, the plaintiff demands judgment incorporating the agreement of separation by reference and not by merger therein, but rather that the agreement survive the judgment (in consonance with the clause in the agreement so providing).

The defendant interposed the following affirmative defense in his answer:

'4. That the aforesaid (separation agreement) * * * was invalid and void in that the same violated Section 5--311 of the General Obligations Law, in that in the terms of said writing it purported to relieve the husband from his liability to support his wife.

'5. That by reason thereof, said agreement was void, and being void a conversion divorce may not be predicated upon the same since it was the contemplation of the Domestic Relations Law that only valid separation agreements be the basis for a conversion divorce decree.' ¹

Some time prior to the trial the plaintiff moved at Special Term to strike the defense. The Court, in its memorandum decision, stated that:

'While the particular paragraph (5 of the separation agreement) offends public policy and is illegal, it does not vitiate the entire agreement as the husband would be liable for her support despite the occurrence of the specified events. Accordingly, the motion is granted.'

An appeal was taken by the defendant husband from this order, but it has not been prosecuted and he does not now dispute the wife's entitlement to a divorce based upon the agreement of separation, and indeed makes provision for the granting of a decree of divorce to the wife in his counter proposed findings of fact and conclusions of law. What he does contest, however, is the legality of the support provision cotained in paragraph 4 of the agreement, and he therefore opposes the wife's claims to arrears, dental expenses and future maintenance thereunder. His contention is that since it has been decided that paragraph 5 of the contract is 'illegal', then paragraph 4 must fail as well, since they are both paragraphs of the same agreement.

(IV)

On the issue of illegality, the defendant points to the prior holding as the law of the case and urges that it is binding upon me.

I recognize, of course, the established doctrine that a judge 'should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction' (Mount Sinai Hospital, Inc. v. Davis, 8 A.D.2d 361, 362--363, 188 N.Y.S.2d 298, 300 (1959) mot. for lv. app. den. 9 A.D.2d 641, 191 N.Y.S.2d 546 (1959); Matter of Haas, 33 A.D.2d 1, 304 N.Y.S.2d 930, 937--938 (1969)). ²

However, the defendant misjudges the rule as it is applicable to the instant set of circumstances, in that he fails to distinguish between a judge's decision and dictum, between an order of the court and its opinion. I consider myself bound by the court's determination, not its reasoning.

(V)

When the Court at Special Term struck the defense interposed to the action for divorce based upon the separation agreement, that was a definitive judicial determination in this case which is controlling so far as I am concerned (and, with which decision, by the way, I agree). For, whether or not the questioned clauses are violative of public policy and of law, and are void or illegal, the basic Factum of the agreement involved in the first cause of action herein was a marital separation--and it is that critical circumstance that is operative in respect of section 170(6) of the Domestic Relations Law providing for a divorce. As regards this aspect of the instant case, I need but refer to the comments in Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513, where Chief Judge Fuld, speaking for the Court, said (pp. 35--37, 308 N.Y.S.2d pages 350--351, 256 N.E.2d pages 516--517):

'Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them 'to extricate themselves from a perpetual state of marital limbo' (Adelman v. Adelman, 58 Misc.2d 803, 805, 296 N.Y.S.2d 999, 1003; see, also, Wadlington, Divorce Without Fault Without Perjury, 52 Va.L.Rev. 32, 81--87.)

'Reasonably and sensibly read, the statute, as a whole, points the construction that all that has to be proved is that there is some kind of formal document of separation--in this case, a judicial decree--that the plaintiff has complied with its terms and that the parties have lived apart pursuant to the decree for two years after September 1, 1966.'

(VI)

However, I do not agree with my learned colleague when, in articulating the reasoning which gave rise to his conclusion, he characterized the questioned contractual paragraph as 'illegal.' True, certain (but not all ³) of its provisions are interdicted by the statute, and are, therefore, invalid, but that does not make them illegal.

Thus, in the recent case of McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185 (1965), the majority speaks of such a contractual clause as 'void' (p. 285, 258 N.Y.S.2d p. 97, 206 N.E.2d p. 189) and makes clear that the 'continuing duty (of the husband to support his wife) cannot be escaped by reliance on any contract', and that 'any agreement so written, construed or applied is invalid' (p. 288, 258 N.Y.S.2d p. 97, 206 N.E.2d p. 189). The dissent says the same thing in that regard--that 'if the agreement were to relieve the husband of his obligation to support his wife, it would be void under old section 51 of the Domestic Relations Law (now General Obligations Law, § 5--311) and a court would, of course, be privileged to disregard it and modify the decree's support provision, based as it was upon the invalid contract' (p. 291, 258 N.Y.S.2d p. 99, 206 N.E.2d p. 191). The legislation had 'stripped' both husband and wife 'of power to relieve' 'the husband of his liability to support his wife' and has 'rendered (them) incapable of bargaining away the woman's...