Macaluso v. Macaluso
| Decision Date | 21 November 1960 |
| Citation | 26 Misc.2d 913,207 N.Y.S.2d 105 |
| Parties | Minnie A. MACALUSO, Plaintiff, v. Joseph N. MACALUSO, Defendant. |
| Court | New York Supreme Court |
James C. Heaney, Buffalo, for plaintiff.
William H. Munson, Buffalo (Joseph D. Figliola, Buffalo, of counsel), for defendant.
This is an action for alimony. In 1953 plaintiff obtained judgment of separation in this court and was awarded $40 per week in permanent alimony. Defendant interposed a counterclaim for separation and it was dismissed on the merits. A subsequent modification of the decree increased the alimony.
On March 16, 1955, defendant obtained a Florida decree of divorce from the plaintiff on grounds of mental and physical cruelty. He remarried in Florida on October 1, 1956. There are no children of either marriage.
During the time plaintiff and defendant were married, they resided together at 1600 Colvin Avenue, Tonawanda, New York, and they acquired title as tenants by the entirety to those premises as well as to a vacant lot adjoining it and a two family income-producing property known as 231 Whitney Place, Buffalo, New York. Upon the death of defendant's father, defendant inherited a three-unit income-producing apartment known as 234 Fargo Avenue and 238 Connecticut Street, Buffalo, New York. This property was likewise placed in the names of both of the parties hereto as tenants by the entirety.
After defendant divorced plaintiff in Florida and on July 1, 1957, he commenced a partition action against the plaintiff with respect to the above mentioned parcels of real property. Thereafter on December 2, 1958, this action was discontinued. By terms of settlement, title to all of the real property was deeded to plaintiff for which she paid defendant the sum of $15,000 and executed a release in his favor. The release provided among other things, as follows:
'This release is more particularly a release for any and all claims which the said Minnie A. Macaluso may have against the said Joseph N. Macaluso for past due alimony or any future alimony, claim or interest in the estate of Joseph N. Macaluso pursuant to a decree of separation, entered in the Erie County Clerk's office in favor of the said Minnie A. Macaluso against the said Joseph N. Macaluso, on the 16th day of March 1953, and thereafter modified on the 18th day of June, 1954.'
In this action for alimony, plaintiff contends that the Florida decree of divorce is invalid since the defendant is now and always has been a resident of the State of New York. She further urges that even though the Florida decree be looked upon as valid, the prior separation decree, including the provision for alimony, has survived. She argues that at the time of the execution of the release settling the partition action, she was the wife of the defendant and, therefore, the terms of the release with respect to future alimony are void as against public policy under § 51 of the Domestic Relations Law of the State of New York.
Defendant, on the other hand, contends that the Florida decree is a valid decree entitled to full faith and credit in New York; that the parties hereto were not married at the time when the release was executed and, therefore, the release is valid and a bar to this action.
This matter was referred to this court for trial without a jury.
Extensive proof was taken by this court on and after the 12th day of September, 1960 and based upon the evidence educed, this court finds the following facts:
1. That defendant Joseph N. Macaluso was a bona fide resident on and after the 12th day of October, 1954 and has been and is domiciled in the State of Florida since the date.
2. That a decree of divorce was entered in the State of Florida in favor of the defendant Joseph N. Macaluso and against Minnie A. Macaluso on the 16th day of March 1955 in the 11th Judicial District of Dade County, Florida. That said divorce was predicated upon service by publication upon the plaintiff herein in accordance with Florida law.
3. That on or after June 27, 1959 Joseph N. Macaluso, then residing in Miami, Florida, instituted an action in this court for partition of the real property heretofore described; that said partition action was predicated on the allegation that his Florida divorce was final.
4. That thereafter Minnie A. Macaluso appeared personally in the New York partition action and defended by way of affirmative defense that the Florida decree was a nullity because (1) no personal service had been effected upon her, and (2) Joseph N. Macaluso was not a bona fide resident of the State of Florida.
5. That after issue was joined in said partition action, a settlement was effected between the parties by the terms of which Joseph N. Macaluso conveyed all of his interest in the New York real property to Minnie A. Macaluso in consideration for a cash payment by her to him in the sum of $15,000; that said settlement further provided that Minnie A. Macaluso release Joseph N. Macaluso from any claim for past due alimony or any future alimony or any claim to his estate arising out of the decree of separation heretofore described.
6. That at the time of the compromise and settlement of the partition action, the four parcels of real property situate in New York State had a fair market value in excess of $40,000 and were encumbered for approximately $2,500.
7. That the execution by Minnie A. Macaluso of the general release dated December 2, 1958 was for an adequate consideration and was her voluntary act.
The Court concludes as follows with respect to the legal questions raised:
1. The Florida divorce was legally entered in accordance with the statutes provided in the State of Florida.
2. That under Article IV, Section 1, of the United States Constitution, the State of New York must give full faith and credit to the public acts, records and judicial proceedings of the State of Florida insofar as the Florida decree severs the marital status of the parties. However, said Florida decree did not alter or vary the requirements of the New York separation decree requiring Joseph N. Macaluso to pay alimony to his wife. See Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113, certiorari denied 332 U.S. 760, 68 S.Ct. 62, 92 L.Ed. 346. Lynn v. Lynn, 275 App.Div. 269, 88 N.Y.S.2d 791, reversed 302 N.Y. 193, 97 N.E.2d 748, certiorari denied 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640; Vanderbilt v. Vanderbilt, 207 Misc. 291, 138 N.Y.S.2d 222, affirmed 1 N.Y.2d 342, 153 N.Y.S.2d 1, certiorari granted 352 U.S. 920, 77 S.Ct. 67, 1 L.Ed.2d 45, affirmed 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456.
3. That on December 2, 1958, Joseph N. Macaluso and Minnie A. Macaluso were not husband and wife as a matter of law, in view of the constitutional requirement that New York recognize the Florida divorce; that the general release executed by Minnie A. Macaluso for past due alimony or future alimony or interest in his estate is a valid release; that Section 51 of the Domestic Relations Law entitled 'Powers of Married Woman'...
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Chesta v. Chesta
...that the subsequent agreement, which is silent as to alimony, is a bar to the wife's right to alimony. In the case of Macaluso v. Macaluso, 26 Misc.2d 913, 207 N.Y.S.2d 105, the court held that an agreement executed subsequent to a divorce wherein the ex-wife waives alimony is valid and is ......