Mohrmann v. Kob

Decision Date18 November 1943
Citation291 N.Y. 181,51 N.E.2d 921
PartiesMOHRMANN v. KOB et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Amy E. Mohrmann against Freda M. Kob, as Committee of William G. Mohrmann, also known as William Mohrmann, Jr., an incompetent person, and William G. Mohrmann, also known as William Mohrmann, Jr., for money allegedly due under a separation agreement, wherein defendant filed a counterclaim for divorce. From an order of the Appellate Division, 264 App.Div. 209, 35 N.Y.S.2d 1, which modified on the law and affirmed as modified an order of the Supreme Court at Special Term, Steinbrink, J., presiding, granting in part and denying in part a motion by plaintiff to strike out the defenses and counterclaims contained in the answer, plaintiff appeals by permission of the Appellate Division, 264 App.Div. 873, 35 N.Y.S.2d 734, upon which appeal the following question was certified: ‘In so far as counterclaim is concerned, was the order properly made?’ By permission of the Appellate Division, 264 App.Div. 957, 37 N.Y.S.2d 440, the defendants appeal from the determination of the Appellate Division in so far as such determination relates to the fourth affirmative defense and, upon such appeal, the following question was certified: ‘In so far as the fourth affirmative defense contained in defendants' answer is concerned, was the order properly made?’

Order of the Appellate Division reversed and order of the Special Term affirmed. The question certified on defendants' appeal answered in the affirmative, and the question certified on plaintiff's appeal answered in the negative.

THACHER and RIPPEY, JJ., dissenting. Jacob W. Friedman and Oscar Habas, both of New York City, for plaintiff, appellant and respondent.

Edwin D. Kenyon, of Brooklyn, for defendants, respondents and appellants.

LEWIS, Judge.

This appeal presents for decision a question expressly reserved by the opinion in Kaplan v. Kaplan, 256 N.Y. 366, 176 N.E. 426. May an action for absolute divorce be maintained by the committee of an insane husband against the latter's wife?

The marriage of the plaintiff, Amy E. Mohrmann and William G. Mohrmann, on February 16, 1916, was followed after a brief interval by a separation of the parties. On June 1, 1916, while living apart, they entered into a separation agreement under which the husband agreed to pay his wife a fixed sum each month for her maintenance and support. The husband conformed with the agreement until a date in 1921, when the required monthly payments ceased. By the present action the plaintiff-wife seeks to recover a sum in excess of $5,000 alleged to be due from her husband under the agreement for her maintenance from December 1, 1921, to October 31, 1941. The separation agreement upon which the action is based provides in part that: ‘If the party of the second part (the wife) shall commit any act which shall entitle party of the first part to a divorce under the Laws of the State of New York, then upon such divorce being obtained the provisions herein shall be null and void.’ (Emphasis supplied.)

The defendant's answer, after admitting allegations in the complaint that on July, 16, 1923, the plaintiff's husband, William G. Mohrmann, was adjudged to be an incompetent person, pleads a number of affirmative defenses and counterclaims. Upon this appeal we are concerned solely with the fourth affirmative defense and counterclaim which alleges in substance that between June 1, 1916, and the commencement of this action the plaintiff lived in adultery with a man who, during such relationship, became the father of ‘several’ children born to the plaintiff. In addition there are pleaded allegations appropriate to an action for absolute divorce. Civil Practice Act, ss 1147, 1150, 1153.

At Special Term, where the defendants responded to a motion by the plaintiff to strike from the answer several defenses and counterclaims, the fourth affirmative defense and counterclaim was stricken. The Appellate Division agreed with Special Term that the allegations of the fourth affirmative defense and counterclaim are insufficient in law as a defense but ruled that such allegations are legally sufficient to plead a counterclaim and modified the order accordingly. Upon granting to the plaintiff and the defendants separate motions for leave to appeal the Appellate Division certified the following questions for our decision: For the defendants ‘In so far as the Fourth Affirmative Defense contained in defendants' answer is concerned, was the order properly made?’ For the plaintiff ‘In so far as the counterclaim is concerned, was the order properly made?’ At the outset it should be noted that we are not dealing with the ordinary matrimonial action in which a defendant spouse interposes a counterclaim for divorce. Civil Practice Act, s 1168. Here the plaintiff's action is for money alleged to be due since 1921 under a separation agreement made in 1916 when, we may assume, both parties were competent and a valid marriage existed. By the fourth affirmative defense and counterclaim the defendants have pleaded facts upon which demand is made in behalf of the incompetent husband for an absolute divorce from the plaintiff. However, the demand for relief, predicated upon allegations found in the fourth affirmative defense and counterclaim, is ‘that the defendant incompetent and the plaintiff be divorced and that their marriage be dissolved, and that such decree be entered nunc pro tunc as of the 1st day of June, 1916.’ The defendants thus invoke the judicial process in 1941 to abrogate a valid marriage nunc pro tunc, as of June 1, 1916, because of the misconduct by the plaintiff wife alleged to have occurred on or since the latter date.

The function of orders nunc pro tunc is to correct irregularities in the entry of judicial mandates or like procedural errors. Merrick v. Merrick, 266 N.Y. 120, 122, 194 N.E. 55;Guarantee Trust & Safe Deposit Co. v. Philadelphia, R. & N.E.R. Co., 160 N.Y. 1, 7, 54 N.E. 575. ‘When a ruling has in fact been made but is improperly evidenced by a defective mandate, or by no mandate at all, an appropriate and suitable order or judgment which manifests the existence of a determination may subsequently be granted to take effect as of the date of such determination.’ Merrick v. Merrick, supra, 266 N.Y. page 122, 194 N.E. page 56. However, an order nunc pro tunc may not serve to record a fact, such as a divorce, as of a prior date when the fact did not then exist. ‘A court has no power to have a new order or ruling so entered, thus bringing into the record an element which did not previously exist. The facts must exist and then, if the record of them is imperfect or incomplete, it may be amended; but, if the record shows the actual facts then no order can be properly made changing them so as to take the place of an act that was required to be previously performed. While a court may record an existing fact nunc pro tunc, it cannot record a fact as of a prior date, when it did not then exist.’ Guarantee Trust & Safe Deposit Co. v. Philadelphia, R. & N. E. R. Co., supra, 160 N.Y. page 7, 54 N.E. page 577;Stock v. Mann, 255 N.Y. 100, 103, 174 N.E. 76.

In the present case no decree of divorce had been granted in 1916. Presumably a valid marriage between the plaintiff and William G. Mohrmann then existed. Indeed the plaintiff alleges in her complaint and the answer admits that such marriage took place on February 16, 1916, and ‘that the plaintiff and defendant William G. Mohrmann were at all times and still now (sic) are wife and husband.’

If we rule, as did the Appellate Division, that the counterclaim now asserted in the incompetent's behalf is sufficient in law as a pleading and the demand for relief thereunder is granted to the defendants, such an adjudication by an order nunc pro tunc would lead to the dissolution as of June 1, 1916, of a marriage which, upon conceded facts then existing, was valid. An order nunc pro tunc may not be put to such use.

We agree with Special Term and the Appellate Division that the allegations in the fourth affirmative defense and counterclaim upon which the defendants now seek an absolute divorce in behalf of the incompetent are not sufficient in law to constitute and affirmative defense to the plaintiff's action. Galusha v. Galusha, 116 N.Y. 635, 643-645, 22 N.E. 1114,6 L.R.A. 487, 15 Am.Rep. 453, and see Randolph v. Field, 165 App.Div. 279, 283, 150 N.Y.S. 822. Such an affirmative defense by the defendants gains no support from the separation agreement, quoted in part above, which by its own terms becomes ‘null and void’ only ‘upon such divorce being obtained’.

There remains the question whether the allegations in the fourth affirmative defense and counterclaim are sufficient in law to plead a counterclaim for absolute divorce not effective nunc pro tunc as of June 1, 1916, but as of the date of the judgment herein.

In Kaplan v. Kaplan, supra, where the ruling was that an action for separation may be brought by an insane person through her guardian ad litem, it was pointed out in the opinion (per Lehman, J., page 370 of 256 N.Y., page 427 of 176 N.E.) that ‘before the statutory action for an absolute divorce was created, actions for separation or limited divorce might be maintained in behalf of an incompetent. In such actions the relief which may be granted is based upon the continued existence of the marriage tie.’ In the present case, however, the counterclaim seeks an absolute divorce involving the dissolution of a valid marriage which was concededly entered into upon the free consent of both parties.

Unlike the statutory situation in Massachusetts and Rhode Island (see Annotated Laws of Massachusetts, vol. 6, ch. 208, s 7, and Garnett v. Garnett, 114 Mass. 379, 380, 381,19 Am.Rep. 369;Cowan v. Cowan, 139 Mass. 377, 378, 379, 1 N.E. 152;Thayer v. Thayer, 9 R.I. 377), we find nothing in the...

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