Rosen v. Goldberg
| Citation | 283 N.Y.S.2d 804,28 A.D.2d 1051 |
| Parties | Rosalie M. Goldberg ROSEN, Respondent, v. Stanley M. GOLDBERG, Appellant. |
| Decision Date | 27 October 1967 |
| Court | New York Supreme Court Appellate Division |
Irving Brand, New York City, Lawrence E. Lagarenne, Monticello, for appellant.
Goldstein & Goldstein, Carl P. Goldstein, Monticello, for respondent.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GABRIELLI, JJ.
Appeal (1) from an order of the Supreme Court at Special Term which granted plaintiff's motion for summary judgment in an action brought to recover the amounts due plaintiff from defendant, pursuant to the terms of a separation agreement, for the support and maintenance of the children of the parties' marriage and for reasonable attorney's fees incurred by plaintiff in this action to enforce the agreement; and (2) from the judgment entered on said order.
We find unavailing the defense that the separation agreement is void under section 5--311 of the General Obligations Law as embracing a contract to dissolve the marriage. That section was amended by section 12 of chapter 254 of the Laws of 1966 so as to add the provision: 'An agreement, heretofore or hereafter made between a husband and wife, shall not be considered a contract to alter or dissolve the marriage unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds for divorce.' The contract before us contains neither such provision.
The judgment awarded exceeds the sum demanded in the complaint because it includes amounts accrued for support payments subsequent to the commencement of the action. The complaint is amended accordingly, so as to conform to the evidence. (CPLR 3025, subds. (b) and (c).)
The appellant in his reply brief concedes the authority of the Special Term upon adequate proof to grant counsel fees (see Fabrikant v. Fabrikant, 19 N.Y.2d 154, 278 N.Y.S.2d 607, 225 N.E.2d 202) and indeed, the agreement here provides for that relief; but he attacks the award thereof in this case as arbitrary and unsupported by the proof. Plaintiff's attorney, a practitioner of over 35 years' experience, stated in an affidavit the nature and extent of the various services rendered and his opinion of their value. Although the recitals were in some respects somewhat general, the factual statements were, in the context of these particular proceedings, sufficient to enable the experienced Judge who heard the...
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Waxstein v. Waxstein
...... should not be equated to or regarded as "an express provision requiring the dissolution of the marriage" (General Obligations Law § 5-311; Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804, affd. 23 N.Y.2d 791, 297 N.Y.S.2d 298, 244 N.E.2d 869), nor does the paragraph have a direct tendency ......
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...... While the provision challenged here appears to constitute such an express provision obligating the parties to obtain a divorce (see, generally, Rosen v. Goldberg, 28 A.D.2d 1051, 283 N.Y.S.2d 804; Waxstein v. Waxstein, 90 Misc.2d 784, 395 N.Y.S.2d 877, affd. 57 A.D.2d 863, 394 N.Y.S.2d 253; ......
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