Mass v. Mass

• Decision Date: 17 December 1981
• Citation: 445 N.Y.S.2d 612,85 A.D.2d 802
• Parties: In the Matter of Barbara F. MASS, Appellant, v. Howard B. MASS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 612

445 N.Y.S.2d 612

85 A.D.2d 802

In the Matter of Barbara F. MASS, Appellant, v. Howard B. MASS, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 17, 1981.

Van Woert, Konstanty & Schebaum, Oneonta (James E. Konstanty, Oneonta, of counsel) for appellant.

Robert A. Ronder, Kingston (Lawrence R. Shelton, Kingston, of counsel) for respondent.

Before MAHONEY, P. J., and SWEENEY, MAIN, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Family Court of Delaware County entered June 2, 1980, which dismissed the petition for lack of jurisdiction.

The parties' marriage was ended by a Mexican decree of divorce entered July 28, 1962, which incorporated, but did not merge, a prior separation agreement. Petitioner initiated this proceeding by petition dated October 15, 1979, seeking an upward modification of the support provision upon ground that: "the cost of living has risen drastically, and the respondent is not complying with paragraph 8 of the separation agreement which stated: 'Anything to the contrary notwithstanding, the Husband shall pay no less than $6,000 per year for the support and maintenance of the Wife and Children.' "

The separation agreement executed on July 17, 1962 provided, inter alia, that when their son, Clifford B. Mass, born March 20, 1953, attained the age of 13 years, respondent was to pay to petitioner the sum of $400 a month as alimony. By petition sworn to September 29, 1971, petitioner instituted a proceeding pursuant to article 4 of the Family Court Act, alleging that "respondent, since on or about September 20, 1971, has refused and neglected to provide fair and reasonable support" for petitioner and their three children according to his means. Family Court, by order entered January 31, 1972, directed respondent to pay to petitioner the sum of $400 per month as alimony. In April, 1975, petitioner sought an upward modification of that order. By order of the Family Court dated September 5, 1975, that petition was dismissed. Family Court, in dismissing the present application, ruled that the petition required it to determine the impact of paragraph 8 of the separation agreement on the amount to be paid the wife and that it did not have jurisdiction to make a declaratory judgment concerning paragraph 8 of the separation agreement.

There should be an affirmance. Here, in the light of the prior history of this litigation, the allegations of the present and past petitions and the answering affidavit of respondent, Family Court is being asked to resolve the conflict between two clauses of a prior separation agreement which has been incorporated in but not merged with a foreign decree of...