Seligman v. Seligman

• Decision Date: 29 December 1958
• Citation: 181 N.Y.S.2d 679,15 Misc.2d 840
• Parties: Lorraine SELIGMAN, by George Knee her Guardian ad Litem, v. Marvin SELIGMAN.
• Court: New York Supreme Court

Page 679

181 N.Y.S.2d 679

15 Misc.2d 840

Lorraine SELIGMAN, by George Knee her Guardian ad Litem, v. Marvin SELIGMAN.

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

Dec. 29, 1958.

Milton M. Eisenberg, Brooklyn, for plaintiff.

Ira Rubin, New York City, for defendant.

BENJAMIN BRENNER, Justice.

Plaintiff wife moves for judgment for the arrears of alimony and counsel fees. Defendant husband cross-moves to vacate the order granting temporary alimony and counsel fees and to dismiss the complaint on the ground that the action has been abandoned by an admitted reconciliation of the parties. On June 28, 1957 the defendant was ordered by this court to pay temporary alimony of $60 per week and a counsel fee of $400. In September 1957 the parties became reconciled but in March 1958 they again separated.

A reconciliation following a final judgment of separation has been given the effect of merely suspending the alimony payments during the period of reconciliation rather than of completely terminating the provision for such payment (Sommer v. Sommer, 248 App.Div. 827, 289 N.Y.S. 18, affirmed 274 N.Y. 539, 10 N.E.2d 539; Lowe v. Lowe, 279 App.Div. 852, 110 N.Y.S.2d 49). However, a reconciliation prior to final judgment but subsequent to an order for alimony pendente lite constitutes a waiver by the wife of alimony unless followed by a further separation caused by the husband's conduct. Thus, a determination of whether the separation following the reconciliation in the instant case resulted in a revival of the order for alimony pendente lite turns on whether the husband's conduct caused the second separation (Luxenberg v. Luxenberg, 230 App.Div. 513, 245 N.Y.S. 383).

Ordinarily, the preliminary question which must be resolved is whether the parties were actually reconciled. Here this question does not arise since the plaintiff in her affidavits admits that there was an intent to reconcile and this binds the wife that there was in fact a bona fide reconciliation. Dubin v. Dubin, 174 Misc. 952, 22 N.Y.S.2d 246, affirmed without opinion 261 App.Div. 945, 27 N.Y.S.2d 445, appeal denied 261 App.Div. 1057, 27 N.Y.S.2d 1013. But whether the defendant's acts caused the second separation cannot be determined on affidavits and must be referred for a full hearing.

The defendant raises the further problem that, without his knowledge, an inquest was taken in this action before the late Official Referee Frank E. Johnson who passed on before making findings or...