Santamaria v. Santamaria

• Decision Date: 27 June 1973
• Citation: 345 N.Y.S.2d 906,74 Misc.2d 657
• Parties: Yolanda SANTAMARIA, Plaintiff, v. William SANTAMARIA, Defendant.
• Court: New York Supreme Court

Page 906

345 N.Y.S.2d 906

74 Misc.2d 657

Yolanda SANTAMARIA, Plaintiff, v. William SANTAMARIA, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

June 27, 1973.

[74 Misc.2d 658] Jack B. Solerwitz, Mineola, for plaintiff.

Christopher C. Maffucci, Jr., Malverne, for defendant.

MEMORANDUM

BERTRAM HARNETT, Justice.

In August 1970, Yolanda Santamaria and her ex-husband William stipulated in Court to incorporate into their 1969 Mexican divorce judgment the provisions of a prior separation agreement which were inadvertently omitted from the decree. This Court signed an order on April 29, 1971 effectuating the stipulation and modification of the foreign decree and directing, Inter alia, payment of $2,000 by Mr. Santamaria at a rate of $500 per month, recovery from him of $2,060 in support arrears, and a $500 counsel fee payment to the wife within 30 days. Now, in conjunction with Mrs. Santamaria's motion for a finding that her ex-husband is in contempt of these directives, he moves to vacate the prior modification order on the grounds that this Court, indeed any New York court, lacks jurisdiction to modify a foreign decree without alimony provision.

Mr. Santamaria argues that New York courts have no power to alter the Mexican decree, which is modifiable, he says, only by Mexican courts according to Mexican law. He asserts that since the parties could not confer this power upon this Court by stipulation, the New York order made incorporating the separation agreement in the Chihuahua Civil Court judgment is void. He suggests that Mrs Santamaria can proceed to alter the divorce decree only by way of traveling to Mexico and initiating the proper proceedings there.

This line of reasoning might well be persuasive, but for two factors. First, there is both statutory and decisional authority which squarely establish that foreign divorce decrees may be modified by New York courts. Second, special circumstances here reflecting total agreement of the parties that alimony was intended to be included in the Mexican decree favor modification.

Section 466(c) of the Family Court Act, as amended in 1965, empowers the Family Court to 'entertain an application to modify the (divorce) order or decree granting alimony (in a court of competent jurisdiction outside New York) on the ground that there has been a subsequent change of circumstances and that modification is required'. In Matter of Seitz v. Drogheo, 21 N.Y.2d 181, 287 N.Y.S.2d 29, 234 N.E.2d 209, the Court of Appeals held that the Supreme Court has concurrent jurisdiction with the Family Court over such applications pursuant to New York Constitution Article VI and therefore it too has the authority to modify a foreign decree. This modification power adheres even where a prior separation agreement's provisions are incorporated in the foreign decree, for both decreases in support and alimony provisions, McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185, as well as increases, Kagen v. Kagen, 21 N.Y.2d 532, 289 N.Y.S.2d 195, 236 N.E.2d 475; see, Gutillo v. Gutillo, 30 A.D.2d 484, 294 N.Y.S.2d 438; Cooperman v. Cooperman, 62 Misc.2d 745, 309 N.Y.S.2d 683; Cf. Schmelzel v. Schmelzel 287 N.Y. 21, 38 N.E.2d 114. The rights flowing from the separation agreement are theoretically not abridged by modification of the decree and are therefore still separately enforceable. Cf. Kagen v. Kagen, Supra, 21 N.Y.2d at 532, 538, 289 N.Y.S.2d at 195, 236 N.E.2d at 475 (Jasen, J., dissenting).

Substantial changed circumstances alone will justify modification. Here, the failure of the wife to incorporate the agreement when she obtained the divorce in Mexico was admittedly inadvertent. And, upon mutual realization of the error, both sides agreed that such changed circumstances existed to warrant the modification. Here, unlike both Kagen and McMains (where the decree to be modified had incorporated the agreement), the original judgment did not embody the separation agreement and the modification incorporating it in no way jeopardized or conflicted with contractual rights.

Defendant's salient point is that Section 466(c), by its language, confers jurisdiction over applications to modify foreign decrees only where:

'a court of competent jurisdiction not of the state of New York shall enter an order or decree granting alimony or support'.

Family courts have declined jurisdiction in cases where the out-of-state decree declined to award alimony. Warden v. Warden, 68 Misc.2d 1080, 329 N.Y.S.2d 51; Fine v. Fine, 65 Misc.2d 87, 316 N.Y.S.2d 725; Matter of Infanto v. Infanto, 66 Misc.2d 699, 321 N.Y.S.2d 928. The reasons given, however, concentrate more on consideration of full faith and credit as to a sister state court's denial of alimony after full presentation of the issues, Warden v. Warden, Supra, and a hesitancy to invoke the statutorily limited Family Court jurisdiction to create a right to alimony where, in effect, it had been waived, or found unwarranted, in the foreign decree. Matter of Infanto v. Infanto, Supra, 66 Misc.2d at 702--703, 321 N.Y.S.2d 928 at 931--932; Chrestman v. Chrestman, 60 Misc.2d 780, 303 N.Y.S.2d 733.

The Supreme Court in New York has a broader and more general jurisdiction in matrimonial matters. N.Y. Constitution Article VI, § 7(a); see, Doe v. Doe, 50 Misc.2d 255, 269 N.Y.S.2d 802. Though still limited by Section 466(c) of the Family Court Act, this Court had and has the power and duty to look into all the circumstances surrounding the foreign decree to determine the significance of decretal silence on the alimony point, and therefore the import of incorporating alimony in the separation agreement.

First, there was, of course, no contested trial of the matter, and, in fact, no determination at all by the by the Mexican court on the issue of alimony. The matter was never raised by Mrs. Santamaria, mistakenly, and the Court did not therefore determine on the merits that alimony should not be granted. In point of fact, both parties have all along agreed that alimony would be paid and that the divorce decree should so provide. It is almost inconceivable that the Mexican Court here, if asked to, would have declined to incorporate the agreement since the common practice in these speedy divorce proceedings is to honor such requests generally made on consent. Accordingly, there is absent here any element of a New York court contradicting or overruling a considered Mexican alimony determination.

Moreover, there is a significant difference in the view of New York courts towards alien decrees and decrees of sister states. Whereas another state's divorce judgment entitlement to full faith and credit in New York is a profound principle upon which the federal system in this country rests, the court orders of foreign nations are respected only in so far as comity requires. Compare, Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 and Milbank v. Milbank, 36 A.D.2d 292, 320 N.Y.S.2d 436, affd. 29 N.Y.2d 844, 327 N.Y.S.2d 856, 277 N.E.2d 788, with Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709, cert. den. Wood v. Wood, 383 U.S. 943, 86 S.Ct. 1197, 16 L.Ed.2d 682; Busk v. Busk, 18 A.D.2d 700, 236 N.Y.S.2d 336. Where a foreign country is but a brief haven for New York couples seeking divorce, and the family resides in New York there are important reasons for tipping comity considerations in favor of New York's power to enforce, supervise and modify the decree. The jurisdiction with the closest continuing relationship to the family, even after marital breakup, is most closely connected to the facts and needs concerning the terms of the breakup.

The public policy in New York does not favor any disallowances of alimony for a wife, whether by agreement or foreign decree. General Obligations Law § 5--311; McMains v. McMains, Supra; Matter of Calwil v. Calwil, 34 A.D.2d 535, 309 N.Y.S.2d 24. Moreover, there are equitable considerations here in favor of upholding the modification. The history of events thus far demonstrates conclusively that both parties intended the decree to incorporate the separation agreement.

Mr. Santamaria signed the separation agreement as a...