Simpson v. Kennedy

• Decision Date: 06 April 1964
• Citation: 42 Misc.2d 490,248 N.Y.S.2d 448
• Parties: Lorraine Hurley SIMPSON, Plaintiff, v. Francis Joseph KENNEDY, Defendant.
• Court: New York City Court

Page 448

248 N.Y.S.2d 448

42 Misc.2d 490

Lorraine Hurley SIMPSON, Plaintiff, v. Francis Joseph KENNEDY, Defendant.

Civil Court of City of New York, Special Term, New York County.

April 6, 1964.

Coudert Brothers, New York City, by William Rand, Jr., New York City, of counsel, for plaintiff.

Martin M. Trainor, New York City, for defendant.

ARTHUR A. KLOTZ, Judge.

Plaintiff moves for summary judgment. The action was instituted to recover for arrears of support payments for the infant daughter of the parties. The first cause of action is based upon a separation agreement between the parties. The second cause is upon a Mexican divorce decree which incorporated the terms of the separation agreement. The amount claimed to be in arrears is not disputed. Defendant contends that plaintiff breached the visitation provisions of the separation agreement and urges that this is a sufficiently meritorious defense to defeat this motion. A factual dispute is present with regard to this and the only question for determination is whether the defense is adequate as a matter of law.

I am of the opinion that a father who is deprived of his visitation rights under a separation agreement need not comply with the stipulation relating to the support of the child. The covenant for support is dependent upon the covenant for visitation rights because the support payments to the child are clearly based upon the right of the father to see and visit his child under the terms of the separation agreement (see Borax v. Borax, 4 N.Y.2d 113, 116, 172 N.Y.S.2d 805, 807-808, 149 N.E.2d 326, 327-328; Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; Haskell v. Haskell, 201 App.Div. 414, 194 N.Y.S. 28, aff'd without opinion 236 N.Y. 635, 142 N.E. 314; Goldner v. Goldner, 284 App.Div. 961, 135 N.Y.S.2d 337, aff'd without opinion 309 N.Y. 675, 128 N.E.2d 321; Levitt v. Levitt, 18 A.D.2d 1051, 238 N.Y.S.2d 407; Richards v. Richards, 5 Misc.2d 46, 53, 157 N.Y.S.2d 874, 880-881; Matter of Noel, 173 Misc. 844, 19 N.Y.S.2d 370; Goodman v. Goodman, 17 Misc.2d 712, 184 N.Y.S.2d 399; Schwartz v. Spergel, Mun.Ct., 90 N.Y.S.2d 439; Morgan v. Morgan, 2 Cir., 201 F.2d 868).

Therefore, as to the first cause of action, there are issues of fact as to the alleged breach of provisions in the separation agreement for the visitation rights of the defendant and their dependency upon the support provisions of the child, which can only be decided at a trial of this action (see Levitt v. Levitt, supra).

Strecker v. Strecker, 10 A.D.2d 312, 199 N.Y.S.2d 111, cited by plaintiff, is clearly distinguishable for the reason that in the Strecker case a proceeding before the Domestic Relations Court was in issue and a hearing had been held in the Domestic Relations Court whereas the issue of breach of the visitation provisions herein is being submitted on affidavits on a motion for summary judgment, where no hearing or trial has been held.

The Mexican decree incorporated the separation agreement with a proviso that the agreement should survive and not be merged in the decree. The decree provides, inter alia, that the infant '* * * shall remain under the custody of the plaintiff mother in accordance with the provisions of the separation agreement entered into between the spouses.' It is obvious that the support and visitation...