Robinson v. Robinson
| Decision Date | 20 May 1986 |
| Citation | 120 A.D.2d 415,501 N.Y.S.2d 874 |
| Parties | Charles Ronald ROBINSON, Plaintiff-Appellant, v. Mary Louise ROBINSON, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
H. Nason, New York City, for plaintiff-appellant.
L.A. Cohen, New York City, for defendant-respondent.
Before MURPHY, P.J., and SULLIVAN, ROSS, MILONAS and KASSAL, JJ.
Order of the Supreme Court, New York County (Ira Gammerman, J.), entered October 25, 1985, which denied plaintiff-appellant Charles Robinson's motion for summary judgment on his first cause of action seeking specific performance of that provision of the parties' separation agreement entitling him to possession of penthouse apartment A located at 160 East 48th Street, unanimously reversed on the law, without costs, to the extent of granting plaintiff's motion for summary judgment as to his first cause of action.
Plaintiff Charles R. Robinson and defendant Mary L. Robinson were married in 1971. In August, 1979 defendant informed plaintiff that she wanted a separation. Nearly one year later, on July 6, 1980, the parties executed a separation agreement. Immediately thereafter, they went to the Dominican Republic where they obtained a bilateral divorce on July 9, 1980. The separation agreement was incorporated but not merged into the divorce decree.
The separation agreement provided in its Eighth Article that defendant would have possession of the couple's rent stabilized penthouse apartment at 160 East 48th Street between August, 1980 and August, 1982. At the conclusion of this period it was agreed that plaintiff would be entitled to possession. In August, 1982 the parties decided to execute a modification to the separation agreement. The modification, drafted by defendant in her own handwriting, provides that defendant may continue in possession of the apartment until August 1, 1984, at which time it is expressly stated that possession is to be turned over to plaintiff.
Despite plaintiff's timely demand, defendant did not vacate the premises on or before August 1, 1984, and has not done so since. Plaintiff, therefore, began this action for specific performance of that provision of the modified separation agreement entitling him to possession of the apartment. Defendant has responded by challenging the validity of the separation agreement which she claims is unfair and unconscionable in its terms and the product of plaintiff's coercion and overreaching.
Under the doctrine of comity the courts of this state generally recognize foreign judgments. (Greschler v. Greschler, 51 N.Y.2d 368, 376, 434 N.Y.S. 2d 194, 414 N.E.2d 694.) Accordingly, a party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding. (Id.) Only where there has been a showing that the foreign judgment was fraudulently obtained (see, e.g., Tamimi v. Tamimi, 38 A.D.2d 197, 328 N.Y.S.2d 477), or that recognition of the judgment would conflict seriously with a compelling public policy (see, e.g., Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597) can a collateral attack be entertained. (Greschler, supra 51 N.Y.2d at 376, 434 N.Y.S.2d 194, 414 N.E.2d 694.)
In challenging the subject separation agreement defendant necessarily challenges the divorce decree into which it was incorporated. This is precisely the sort of collateral attack upon a foreign judgment forbidden by the doctrine of comity. Defendant appeared in the bilateral Dominican divorce proceeding and makes no allegation that the foreign court's authority to grant the divorce or determine the parties' economic and property rights was somehow vitiated by plaintiff's fraud. Rather, defendant claims simply that the separation agreement is unfair and was made so by plaintiff's overreaching. On the record before us it does not appear that there was any overreaching by plaintiff or consequent unfairness. Yet, even if there were, mere unfairness unaccompanied by fraud would not affect the validity of a foreign judgment protected under the doctrine of comity. (Greschler, supra, at 376, 434 N.Y.S.2d 194, 414 N.E.2d 694.)
Not only is the complained of unfairness inadequate to remove the separation agreement and the divorce decree of which it is a part from under the aegis of the comity doctrine by reason of fraud, it is also insufficient to accomplish the same end on public policy grounds. We note that the separation agreement was executed nearly a year after defendant first indicated that she wanted to leave plaintiff. There was thus ample time for the...
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