Miller v. Miller

• Decision Date: 01 March 1983
• Parties: Bernice MILLER, Plaintiff-Appellant, v. Joseph MILLER, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 596

459 N.Y.S.2d 596

92 A.D.2d 761

Bernice MILLER, Plaintiff-Appellant, v. Joseph MILLER, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 1, 1983.

H. Berkowitz, Brooklyn, for plaintiff-appellant.

D.M. Nussbaum, New York City, for defendant-respondent.

Before MURPHY, P.J., and ROSS, ASCH, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered October 28, 1982, which denied plaintiff's application: (1) to declare a 1958 Mexican divorce decree, which incorporated a 1957 Separation Agreement, of the same force and effect as a New York judgment; (2) to enforce the support provision of the Separation Agreement; (3) for entry of a money judgment against defendant for arrears in support; and, (4) for counsel fees, is unanimously reversed, on the law, without costs, the Mexican divorce decree is declared to be a New York judgment, the plaintiff's application for alimony arrears is granted, and the matter is remanded for assessment of the arrears and counsel fees.

On June 28, 1947 plaintiff wife married defendant husband. The issue of that marriage were two sons, one born in 1950 and the other born in 1953. Subsequently, on July 24, 1957, the parties entered into a Separation Agreement, the terms of which were thereafter incorporated by reference, but not merged, into a Mexican decree of divorce, entered March 28, 1958.

In the Mexican proceeding, plaintiff appeared in person accompanied by her counsel and the defendant, after executing a special power of attorney, appeared by his own counsel.

The sixth paragraph of the incorporated Separation Agreement dealt with the payment of alimony. That paragraph reads:

"SIXTH: The Husband agrees to pay to the Wife at her home for her support and maintenance the sum of Fifty ($50.00) Dollars per week, the first installment to be paid on the date of the execution of this agreement. The liability of the Husband for the payments set forth in this paragraph shall cease upon the day of whichever of the following events shall first occur:

(a) The remarriage of the Wife:

(b) The death of the Wife."

The plaintiff has never remarried.

For approximately nineteen years from the date of the divorce decree, the defendant complied fully with the terms of the Separation Agreement, including the alimony paragraph. Thereafter, defendant concededly, without Court approval, and over plaintiff's objection, first reduced the weekly alimony payments to $40.00 for the period August 1977 to January 1981, and then in January 1981 he stopped paying any alimony to plaintiff.

By order to show cause, plaintiff brought the instant application, pursuant to § 466(c) of the Family Court Act, to enforce the incorporated Separation Agreement, contained in the divorce decree, against defendant, for alimony arrears and counsel fees.

Despite the uncontested fact that defendant specifically, in an affidavit submitted to Special Term, swore that "I do not challenge the validity of the Mexican divorce judgment as an effective and valid instrument dissolving our marriage" and the uncontested fact that, as mentioned supra, defendant paid the alimony as the Agreement provided for almost twenty years without protest, Special Term denied petitioner's application for summary relief. The basis for Special Term's holding was the defendant's naked contention that he never signed the Separation Agreement. Special Term deemed that contention sufficient to raise a triable issue of fact.

In spite of the fact that the original Separation Agreement, with defendant's signature, cannot be produced a quarter of a century after it was submitted to the Mexican Court, because it appears to have been misplaced, plaintiff did produce a conformed copy. In addition, plaintiff also submitted an affidavit from Marvin Schacher (Schacher), who represented plaintiff in the negotiations culminating in the Separation Agreement and in the Mexican divorce proceeding.

In pertinent part, in his affidavit, Schacher swore that he prepared the Separation Agreement and:

"I can unequivocally state that the Separation Agreement was executed by both plaintiff and defendant ... On July 24, 1957, plaintiff executed a copy of the Separation Agreement in my presence. After plaintiff executed the Separation Agreement, I am positive that I...