Joffe v. Spector

• Decision Date: 18 May 1967
• Citation: 27 A.D.2d 406,279 N.Y.S.2d 905
• Parties: Arthur C. JOFFE and Louis J. Beckanstin, Executors under the Will of Elsie Eve Spector, Deceased, Appellants, v. Solomon SPECTOR, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 905

279 N.Y.S.2d 905

27 A.D.2d 406

Arthur C. JOFFE and Louis J. Beckanstin, Executors under the

Will of Elsie Eve Spector, Deceased, Appellants, v. Solomon SPECTOR, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 18, 1967.

Coulter, Fraser, Carr, Ames & Bolton, Syracuse, for appellants.

R. J. & P. R. Shanahan, Syracuse, for respondent.

Before BASTOW, J., and GOLDMAN, HENRY, DEL VECCHIO and MARSH, JJ.

OPINION

GOLDMAN, Justice.

A separation action was brought by the plaintiffs' decedent in 1946 in which the defendant counterclaimed for an annulment. The record of the trial impels one to conclude that the main issue throughout the litigation was the property settlement rather than the severance of the marriage. Before the decision was made, the parties entered into an agreement settling the amount to be paid to the wife. Thereafter an annulment was granted the defendant husband. In March 1963 the wife became seriously ill with cancer, from which she ultimately died. In December 1964 the wife moved for a modification of the annulment decree of 1949 and requested $500 monthly for her support and maintenance, principally based upon financial need growing out of her illness. By order of June 28, 1965, Special Term allowed her $300 per month and counsel fees (Spector v. Spector, 49 Misc.2d 591, 267 N.Y.S.2d 959). Defendant husband appealed from that order and this court affirmed (24 A.D.2d 1082, 265 N.Y.S.2d 632, mot. for lv. to app. den. 17 N.Y.2d 419, 267 N.Y.S.2d 1027, 214 N.E.2d 636).

On June 27, 1965 the wife entered Roosevelt Hospital in New York City for further treatment of her malignancy, including cobalt therapy. By order to show cause, returnable July 26, 1965, the wife sought a modification of the June 28, 1965 order and requested $2,500 per month to pay for the cost of her hospitalization. Hospital bills and affidavits in support of her application demonstrate, without contradiction, that her monthly expenses were $2,000 to $2,500. Special Term denied her application, citing as its reason that its order of June 28, 1965 'covered medical expenses incurred or to be incurred'. The refusal to increase the allowance under the circumstances in this record was an improvident exercise of Special Term's discretion. The wife appealed but before the matter was argued in this court she died on January 23, 1966. A motion made on April 25, 1966 to substitute executors as appellants was granted without defendant's opposition. Seven months later defendant respondent moved to dismiss the appeal upon the ground that it had become academic by reason of the wife's death. This court denied that motion with leave to renew it upon the argument of the appeal. The motion was renewed upon argument and is hereby denied.

The issue is squarely presented as to whether this appeal abated by reason of the wife's death. The defendant has paid the wife's executors the $300 per month allowance up to the date of her death and appellant executors are seeking an additional $2,200 per month to the date of death. Domestic Relations Law § 236 (previously Civil Practice Act § 1170) governs alimony orders. It is founded upon the theory of continuing court jurisdiction over a matrimonial action after final judgment (Fox v. Fox, 263 N.Y. 68, 70, 188 N.E. 160; Mazer v. Mazer, 276 App.Div. 733, 737, 97 N.Y.S.2d 59, 62). Professor David D. Siegel in his Practice Commentary to section 236 (14 McKinney's Domestic Relations Law, p. 134 et seq.) emphasizes the discretionary character of matrimonial actions with the statement: 'According to the Matrimonial and Family Laws Committee which drafted it, section 236 'unifies and broadens the discretion of the court in all classes of matrimonial actions ". Professor Siegel continues (pp. 135, 136) 'Section 236 wipes the slate clean of this disheveled mass.' (referring to all the matter in the Civil Practice Act)

'The most striking aspect of section 236 is the unfettered discretion conferred * * * on the court. No contingencies or conditions are set forth; the standard here is general and apparently all encompassing. It is phrased thus:

'support * * * as, in the court's discretion, justice requires, having regard To the circumstances of the case and of the respective parties.' (Emphasis added.)'

Since the enactment of Chapter 240 of the Laws of 1925 the jurisdiction of the courts over the parties and over incidental subject matter (support) became a continuing one. This concept in matrimonial actions, sometimes referred to as the theory of prolongation, has been strengthened with the passage of time and is clearly broader than ever under section 236 of the Domestic Relations Law. With increasing liberality the law has recognized the right of a spouse to make continuous applications, based upon changed circumstances, to modify support and custody provisions (Fox v. Fox, supra). The effect of the law is to write a reservation of jurisdiction into every matrimonial judgment. While the judgment terminates the relation of husband and wife (status), it does not put an end to the legal and economic incidents of the marriage. The right to consider these incidental matters was recognized in a limited way in Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113; affd. 334 U.S. 541, 544, 68 S.Ct. 1213, 92 L.Ed. 1561. The Supreme Court there affirmed the Court of Appeals determination that a support order survives the divorce decree. We accept this today as fundamental. Kreiger v. Kreiger, 297 N.Y. 530, 74 N.E.2d 468, affd. 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572 followed the Estin precedent. However, our problem goes far beyond these decisions and is certainly more complex.

There is a great paucity of decisions on the question before us. In Rattray v. Raynor, 10 N.Y.2d 494, at page 498, 225 N.Y.S.2d 39, 42, 180 N.E.2d 429, 431, the Court made this pertinent statement:

'Although the wife's death may have rendered a new trial impossible, it did not operate to abate either the actions which had theretofore culminated in the judgment of annulment or the appellate proceedings for the review of such judgment. (See Blake v. Griswold, 104 N.Y. 613, 11 N.E. 137; Carr v. Rischer, 119 N.Y. 117, 23 N.E. 296; Van Ness v. Ransom, 215 N.Y. 557, 109 N.E. 593, (L.R.A.1916B).) Once an action for annulment is begun and a judgment entered at the trial level, the appellate process may be pursued to termination despite the intervening death of a party, upon the substitution of the latter's legal representative. The wife's death did not, therefore, defeat any right of appeal that the plaintiffs would otherwise have had to seek reinstatement of the judgment reversed by the Appellate Division. (See Carr v. Rischer, 119 N.Y. 117, 23 N.E. 296, supra; cf. Civ.Prac.Act, § 89.)'.

In Rattray the relatives of an incompetent sued for annulment upon the ground of incompetency and prevailed at trial. The husband then died. Argument of the appeal was had, and the wife died before the Appellate Division decision, which reversed and ordered a new trial. Plaintiffs, who were...