Juliette S. v. William S.

• Decision Date: 12 November 1974
• Parties: ., Petitioner, v. WILLIAM S., Respondent. * Family Court, City of New York, New York County
• Court: New York City Court

Page 970

360 N.Y.S.2d 970

79 Misc.2d 765

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act, JULIETTE S., Petitioner, v. WILLIAM S., Respondent. ^* Family Court, City of New York, New York County.

Nov. 12, 1974.

Stanley Alter, New York City, for petitioner.

Kronish, Lieb, Shainswit, Weiner, & Hellman, New York City, by David Ellenhorn, New York City, of counsel, for respondent.

NANETTE DEMBITZ, Judge:

This is a proceeding for enforcement of a Mexican divorce decree issued in 1962, incorporating a separation agreement. The major legal issue is whether, for the purpose of this Court's entry of a current support order, the decree is to be treated as incorporating the separation agreement as it was originally signed in 1962, prior to the decree, or as it was modified in 1963.

Under the agreement as signed in 1962, the support payment required for petitioner, the former wife, and for the child of the marriage is $1,250. a month; petitioner seeks a support order of that amount. In the 1963 modification, the monthly support payments were reduced to $833.33. The former husband, herein termed respondent, by his cross-petition contends that the Mexican decree should be deemed to incorporate the 1963 modification and that the monthly support thereby required of $833.33 should be modified downward.

1. Estoppel and Waiver.

Respondent argues that petitioner is estopped from asserting a claim based on the original agreement to pay $1,250. monthly, because of her failure for over 10 years to assert it. Respondent has not succeeded in showing such prejudice from petitioner's conduct as would establish an estoppel (see Ludwig v. Ludwig, 39 A.D.2d 456, 457, 337 N.Y.S.2d 76, 77, 1st Dept.); and Greenberg v. Greenberg, 43 A.D.2d 422, 352 N.Y.S.2d 453 (1st Dept.), cited by respondent, is therefore inapplicable. However, petitioner's abstinence from an effort to enforce the 1962 provision is pertinent to the issue of waiver.

The 1963 modifying agreement provided that 'the parties . . . forever discharge each other from . . . all actions, suits, debts, claims, demands and obligations whether in law or in equity which either of them ever had, now has or may hereafter have . . . by reason of any matter, cause or thing' prior to the agreement. Petitioner's failure to assert for more than 10 years a right to the original amount of support, indicates her understanding that his language covered the Mexican decree, as it literally does. It is true that modification of the decree is not specifically mentioned (compare Ludwig, supra; Martin v. Martin, 5 A.D.2d 307, 310, 172 N.Y.S.2d 636, 639, 2nd Dept.; Aldrich v. Aldrich, 220 App.Div. 555, 557--559, 222 N.Y.S.2d 56, 57--59, 1st Dept., app. dism. 247 N.Y. 563, 161 N.E. 183); however, waivers of decretal enforcement have been found under circumstances similar to those at bar. See Axelrad v. Axelrad, 285 App.Div. 903, 138 N.Y.S.2d 40 (2nd Dept.), aff'd 309 N.Y. 687, 128 N.E.2d 326; DiGiacomo v. DiGiacomo, 1 Misc.2d 731, 149 N.Y.S.2d 448 (Sup.Ct., N.Y.Cnty.); Brant v. Brant, 23 Misc.2d 646, 200 N.Y.S.2d 643 (Sup.Ct., N.Y.Cnty.); Magrill v. Magrill, 16 Misc.2d 896, 903, 184 N.Y.S.2d 516, 523 (Sup.Ct. App. Term, 2nd Dept.); Meyers v. Meyers, 201 N.Y.S.2d 466 (Sup.Ct., Monroe Cnty.); March v. Rumish, 70 Misc.2d 24, 332 N.Y.S.2d 921 (Sup.Ct., Nassau Cnty.); but see Gewirtz v. Gewirtz, 189 App.Div. 483, 485, 178 N.Y.S. 738, 739 (1st Dept.).

Petitioner waived her right to enforce the Mexican decree to any greater extent than that specified in the 1963 modification of agreement.

2. Modification of Decree in Accordance with Modification of Agreement.

The basic rationale as to the relationship between agreements and matrimonial decrees supports--despite some divergent tendencies--the same result as the waiver doctrine: that is, that the Mexican decree should be viewed as incorporating the modified agreement.

It is true that Van Name v. Applegate, 44 A.D.2d 726, 727, 354 N.Y.S.2d 719, 721 (2nd Dept.), held that a Mexican decree incorporating a separation agreement could not be deemed to incorporate its subsequent modification. The view that a decree incorporates the agreement as it stood at the time of the decree's issuance, stems in part from the leading case of Rehill v. Rehill, 306 N.Y. 126, 116 N.E.2d 281. Rehill held that when a Nevada divorce decree had incorporated and 'confirmed' a separation agreement, New York could not reform the agreement. If the decree immunizes the agreement from modification through judicial reformation, it might likewise be deemed immunized, for the purpose of decretal enforcement, from contractual modification.

However, Rehill relied on the full faith and credit that must constitutionally be accorded a decree of a sister-state. See also Nichols v. Nichols, 306 N.Y. 490, 498, 119 N.E.2d 351, 354; Kullack v. Kullack, 1 A.D.2d 1033, 152 N.Y.S.2d 47 (2nd Dept.); Klotz v. Klotz, 17 A.D.2d 800, 232 N.Y.S.2d 753 (1st Dept.); Temple v. Liebmann, 17 Misc.2d 740, 742, 186 N.Y.S.2d 533, 535 (Sup.Ct., N.Y.Cnty.), aff'd, 9 A.D.2d 664, 192 N.Y.S.2d 484 (1st Dept.), app. dism., 7 N.Y.2d 1049, 200 N.Y.S.2d 436, 167 N.E.2d 82. Further, Nichols indicated that the Nevada decree's approval, by incorporation, of the separation agreement may have been based on Nevada's consideration of its substance (306 N.Y. at p. 499, 119 N.E.2d at p. 355). By contrast, our courts have indicated a realistic appreciation of the Pro forma nature of Mexican decretal approval of an incorporated separation agreement. See Calwil v. Calwil, 34 A.D.2d 535, 309 N.Y.S.2d 24 (1st Dept.); Behren v. Behren, 72 Misc.2d 70, 72, 338 N.Y.S.2d 27, 30 (Sup.Ct., Nassau Cnty.); Santamaria v. Santamaria, 74 Misc.2d 657, 345 N.Y.S.2d 906 (Sup.Ct., Nassau Cnty.); compare Flood v. Thiesing, 273 App.Div. 548, 78 N.Y.S.2d 453 (1st Dept.), aff'd 298 N.Y. 700, 82 N.E.2d 790 (Nevada decree). Thus, the Rehill-Nichols principle does not compel the conclusion that the instant Mexican decree must be deemed to incorporate the agreement as it existed at the time of the decree, rather than its modification.

Persuasive that the modified agreement should be given decretal enforcement, are the basic principles as to decrees for alimony that incorporate agreements. The reason that the agreed-decreed alimony is ordinarily unmodifiable, is the public policy in favor of the private settlement of controversies (Galusha v. Galusha, 116 N.Y. 635, 646, 22 N.E. 1114, 1117), and in favor of honoring 'a mutual act of the parties based upon mutual intention.' Schmelzel v. Schmelzel, 287 N.Y. 21, 26, 38 N.E.2d 114, 116. See also Smith v. Smith, 43 A.D.2d 784, 349 N.Y.S.2d 874 (4th Dept.). Obviously it would defeat these policies to hold that petitioner could via the decree enforce the original agreement despite solemn modification of it. Such a result would be inequitable since both parties intended that their contracts, rather than judicial decision, fix support. Under this Court's equitable power to modify decrees as fairness requires, it will therefore treat the decree as modified by the modified agreement. See similar result in Hoops v. Hoops, 292 N.Y. 428, 55 N.E.2d 488.

3. Modification Because of Changed Circumstances.

The question is then presented of whether the decree, deemed to embody the provisions of the modified agreement, should be further modified because of changed circumstances since the date of that agreement. In order to determine this question under the differing principles for alimony and child support, it is necessary to consider what part of the combined monthly payment for petitioner and child should be attributed to each. Taking that portion of the monthly $833.33 that petitioner would receive in case of the child's death as the amount allocable to her, her alimony under the modified agreement and decree is $433.33 a month.

Respondent argues that petitioner is not entitled to this or any alimony at present because she has become employed since the time of the agreement. He urges that a...