Lottridge v. Lottridge

Decision Date04 April 1973
Citation342 N.Y.S.2d 251,73 Misc.2d 614
PartiesMarjorie LOTTRIDGE, Plaintiff, v. Seth LOTTRIDGE, Defendant.
CourtNew York County Court


On July 1, 1965 the plaintiff and defendant, her husband, entered into a separation agreement. Thereafter, on July 7, 1965 the plaintiff obtained a Mexican divorce from defendant. The agreement was incorporated by reference into the divorce decree but not merged therein by specific provision of the second decretal paragraph of the decree.

The agreement required the defendant to pay to the plaintiff alimony in the sum of $60.00 per week; to maintain the mortgage payments upon the plaintiff's residence; to pay the City and County taxes and the utility bills; and to pay to the plaintiff's attorney (who is presently representing her) the sum of $1,350 'for past and future legal expenses.'

The plaintiff brings this action against the defendant for alimony in arrearages amounting to $1320.00, plus the sum of $588.00 representing the amount due and unpaid upon the mortgage which is now the subject of a foreclosure action brought by the mortgagee on December 11, 1972. In a second cause of action, the plaintiff requests the sum of $3500 as reasonable legal services performed by her attorney to date in trying to obtain enforcement of the support terms of the separation agreement.

Although the plaintiff's action was originally commenced by summons in the City Court of Rochester, the parties have stipulated that the action properly belongs in this court and the complaint bears the caption of this court. In addition, the motion for summary judgment brought by the plaintiff pursuant to CPLR 3212 has been made returnable in this court and the answering affidavit and all subsequent proceedings have been directed here as well. The case is now pending on the civil calendar of this court by a properly filed note of issue. Accordingly, jurisdiction has been accepted.

The defendant concedes his delinquency for support payments to September 18, 1972, the date of the summons. Plaintiff, in her complaint, seeks judgment for $1500. The complaint and affidavit are silent as to how this total is arrived at. In all probability it represents the amount due to January 8, 1973, the date of the motion for summary judgment. However, the plaintiff may not obtain judgment for a sum greater than the amount owing at the time suit was brought (Bauchle v. Bauchle, 185 App.Div. 590, 173 N.Y.S. 292).

Accordingly, summary judgment is awarded in an amount equal to the total arrearages to September 18, 1972, at the rate of $60. per week.

The changed financial circumstances of the defendant, his reduced earnings and increased responsibilities resulting from his second marriage, cannot alter his obligation to pay the weekly sum required by the agreement between himself and the plaintiff. It is a contract which survived the divorce decree and therefore his civil liability under it remains fixed. The case of Jacqueline S. v. Gerald C., 70 Misc.2d 19, 332 N.Y.S.2d 773, cited by the defendant, itself recognizes the authority of this rule.

On the other hand, the plaintiff is bound by the clear terms of the agreement as well. That agreement limited the defendant's obligation to the plaintiff for legal expenses 'past and future' to the sum of $1,350.00 and apparently that sum has been paid. That represents the extent of the defendant's liability for attorney's fees and such liability is not enlarged by the fact that additional legal services were required by the wife to obtain the support payments due her under that agreement.

The rule may be harsh, penalizing as it does the former wife because she is obliged to sue her former husband to compel him to live up to the terms of a contract which he freely entered into. Nevertheless that is the rule. Although the discussion in Rosenblatt v. Wolf, 17 A.D.2d 396, 236 N.Y.S.2d 68 indicates the possibility of a contrary rule, that court's position regarding the husband's liability for his ex-wife's attorneys' fees in bringing suit no enforce a separation agreement seems to be left deliberately vague.

In any event, the clear weight of authority is that such liability does not exist. The rule in New York is that, in the absence of statute or contract, attorneys' fees are not recoverable against the opposite party (24 Carmody-Wait 2d Costs § 148:87).

'An action to enforce a separation agreement does not come within the term 'matrimonial action' as defined in the Civil Practice Law and Rules, (CPLR 105(m)), and such actions are not mentioned in any of the provisions of the Domestic Relations Law which relate to allowances and awards in specific actions therein; hence, the enforcement of judgments or orders entered therein; hence, the court does not have the power to make an order requiring the husband to pay alimony and counsel fees in an action for specific performance of a separation agreement.' (16 N.Y.Jur. Domestic Ralations, § 706, p. 270).

See also, Marson v. Marson, 6 A.D.2d 786, 175 N.Y.S.2d 82; Schreiber v. Schreiber, 34 A.D.2d 681, 310 N.Y.S.2d 459; Berry v....

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4 cases
  • Waxstein v. Waxstein
    • United States
    • New York Supreme Court
    • 28 Julio 1976
    ...of a separation agreement may be enforced by specific performance if the remedy at law is inadequate (Lottridge v. Lottridge, 73 Misc.2d 614, 617, 342 N.Y.S.2d 251, 255; 2 Foster-Freed, Law and the Family, § 28:35). But the court may not modify or alter its provisions so long as the agreeme......
  • Monfette v. Van Sickle
    • United States
    • New York Family Court
    • 5 Noviembre 1973
    ...resulting from his second marriage would not alter his obligation to pay the amount required by the contract (Lottridge v. Lottridge, 73 Misc.2d 614, 615, 342 N.Y.S.2d 251, 253). The weight of authority is contrary to the holding of Jacqueline S. v. Gerald C. supra, and I am constrained, th......
  • Korol v. Korol
    • United States
    • New York Supreme Court
    • 28 Octubre 1981
    ...Thus, a plenary action for enforcement of a separation agreement is a contract and not a matrimonial action. See Lottridge v. Lottridge, 73 Misc.2d 614, 342 N.Y.S.2d 251 (Sup.Ct. Monroe Co. 1973). This rule is reiterated at 16 N.Y.Jur., Domestic Relations § 706, as "An action to enforce a s......
  • Promerica Fin. Corp. v. Inmoholdings, Inc.
    • United States
    • New York Supreme Court
    • 13 Agosto 2012
    ...ultimately can obtain specific performance of the LOI is an issue that cannot be resolved at this juncture. Lottridge v Lottridge, 73 Misc 2d 614, 342 NYS2d 251 (N.Y. Sup. 1973). Finally, the motion to quash service on the unidentified shareholders is denied. Inmoholdings and Pachano have n......

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