Olmstead v. Olmstead, s. 1 and 2

• Decision Date: 12 July 1965
• Docket Number: Nos. 1 and 2,s. 1 and 2
• Parties: Lila S. OLMSTEAD, Appellant, v. John W. OLMSTEAD, Respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 375

262 N.Y.S.2d 375

24 A.D.2d 605

Lila S. OLMSTEAD, Appellant, v. John W. OLMSTEAD, Respondent.

(Action Nos. 1 and 2.)

Supreme Court, Appellate Division, Second Department.

July 12, 1965.

Roderick B. Travis, White Plains, for appellant; Thomas C. Woodbury, White Plains, of counsel.

John W. Olmstead, New York City, for respondent; Alan W. Craig, New York City, of counsel.

Before BELDOCK, P. J., and BRENNAN, RABIN, BENJAMIN and HILL, JJ.

MEMORANDUM BY THE COURT.

In an action by a wife to recover payments allegedly due under a separation agreement for the period April 2, 1961 to May 16, 1962, and for other relief (Action No. 1), and in an action by the wife for a judicial separation on the ground of non-support (Action No. 2), the plaintiff wife appeals from: (1) an order of the Supreme Court, Westchester County, entered September 14, 1962, which dismissed the complaint in Action No. 1 for patent insufficiency; and (2) an order of said court, entered March 7, 1963, which dismissed the complaint in Action No. 2 for patent insufficiency.

Orders reversed, with one bill of $10 costs and disbursements, and motions to dismiss the complaint in each action denied. The defendant's time to answer the complaint in each action is extended until 30 days after entry of the order hereon.

On the court's own motion, the two actions (No. 1 and No. 2) are directed to be consolidated and tried together.

The parties were married on August 2, 1929. There are two daughters of the marriage, on Born December 7, 1939 and the other July 29, 1942. Thereafter on July 12, 1946, the parties entered into a separation agreement which provided, inter alia, that defendant pay plaintiff for the support and maintenance of plaintiff and the two minor children the sum of $95 semimonthly.

In a prior action between the parties plaintiff's complaint to recover moneys due under the separation agreement was dismissed because (1) the agreement provided for payment to plaintiff of a single sum periodically for the support of herself and the two children of the parties; (2) the children were not living with plaintiff or being cared for by her during the period of which the payments were claimed; and (3) the court could not award plaintiff a portion of the single agreed amount (Olmstead v. Olmstead, 282 App.Div. 946, 125 N.Y.S.2d 160).

In our opinion, that determination was incorrect in the light of later decisions by the Court of Appeals (Nichols v. Nichols, 306 N.Y. 490, 119 N.E.2d 351), since it here appears that the plaintiff's failure to support the children was attributable to a cause not of her own making. Whether that state of facts actually existed during the period involved in the present action is a question of fact to be determined by plenary proof upon the trial. The fact that the children were with defendant during the period in question is immaterial (Nichols v. Nichols, supra). The fact that the older of the two daughters had attained her majority on December 7, 1957 is likewise immaterial (Rehill v. Rehill, 306 N.Y. 126, 116 N.E.2d 281). Whether the second cause of action (alleged in the complaint in Action No. 1) is sufficient is also immaterial. The ...