Johnson v. Johnson

• Decision Date: 23 July 1946
• Citation: 68 N.E.2d 499,295 N.Y. 477
• Court: New York Court of Appeals Court of Appeals
• Parties: JOHNSON v. JOHNSON.

295 N.Y. 477

68 N.E.2d 499

JOHNSON

v.JOHNSON.

Court of Appeals of New York.

July 23, 1946.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Marion Johnson against Herbert Johnson for a separation, wherein defendant counterclaimed for an annulment. Cross-appeals from a judgment of the Appellate Division of the Supreme Court, entered February 20, 1946, 270 App.Div. 811, 59 N.Y.S.2d 698, modifying on the law and the facts, and affirming as modified, a judgment of the Supreme Court in favor of plaintiff, entered in Kings county upon a decision of the court on a trial at Special Term, Walsh, J., which, among other things, granted a separation, dismissed defendant's counterclaim for an annulment, and awarded plaintiff alimony for her support and the support of a child of the parties. The modification consisted of awarding an annulment to defendant on the counterclaim, dismissing the complaint, declaring the legitimacy of the child of the Certain findings of fact and conclusions made by the trial court were reversed clusions made by the trial court were reversed and new findings and conclusions were made by the Appellate Division. In substance, defendant appeals from the affirmance of the award of alimony and plaintiff appeals in substance from the reversal of the judgment in her favor, the dismissal of her complaint, and the granting of an annulment to defendant.

Judgment affirmed. Gilbert J. Fortgang and Milton Solomon, both of New York City, for plaintiff, appellant and respondent.

Michael D. Lieberman, of New York City, for defendant, respondent and appellant.

FULD, Judge.

The Appellate Division, modifying the judgment of the trial court, has dismissed plaintiff wife's complaint for a separation, granted defendant husband judgment on his counterclaim for annulment, and affirmed an award of $100 a week for the support of plaintiff and the child of the parties.

The weight of the evidnece clearly establishes that plaintiff's prior marriage was still in existence, her first husband still living at the time of her marriage to defendant. Accordingly, the separation was properly denied, the annulment properly granted.

There remains one question upon which this court has not previously passed is the wife in such a situation as the present entitled to permanent alimony under section 1140-a of the Civil Practice Act. Provision for support of the minor child of the parties is not here in issue, as defendant expressly requests such provision to be made; indeed, under section 1140 of the Act, the court ‘must give such direction (therefor) * * * as justice requires.’

Section 1140-a of the Civil Practice Act provides: ‘Maintenance and support of wife in action for annulment of marriage or to declare the nullity of a void marriage. When an action is brought to annul a marriage or to declare the nullity of a void marriage, the court may give such direction for support of the wife by the husband as justice requires. Such direction may be made in the final judgment in such action, or by one or more orders from time to time before final judgment. Upon the application of either the husband or the wife, upon notice to be given as the court shall direct, the court may annul or modify such direction, or in case no such direction shall have been made, in a judgment hereafter given, may amend it by inserting such...