Sondra S. v. Matthew G.

• Decision Date: 27 April 1979
• Citation: 415 N.Y.S.2d 969,99 Misc.2d 309
• Parties: SONDRA S., Petitioner, v. MATTHEW G. a/k/a Matthew G., Respondent.
• Court: New York City Court

Page 969

415 N.Y.S.2d 969

99 Misc.2d 309

SONDRA S., Petitioner, v. MATTHEW G. a/k/a Matthew G., Respondent.

Family Court, City of New York, New York County.

April 27, 1979.

Donald Rosenkrantz, New York City, for petitioner.

Seits & Shapiro, by Edwin S. Shapiro, New York City, for respondent

DECISION AND ORDER

RICHARD D. HUTTNER, Judge:

This is a motion to dismiss a proceeding for the enforcement of a support provision contained in a Mexican divorce decree brought under F.C.A. 466(c). The respondent moved to dismiss the petition contending that the Family Court lacks jurisdiction.

The parties executed a separation agreement on June 29, 1962. Pursuant to the terms of the agreement, the respondent agreed to pay alimony in the amount of $750.00 per month until the remarriage of the petitioner, and child support in the amount of $200.00 per month, per child, until said child attains age 25, or upon the completion of his or her college education.

On July 10, 1962 the parties secured a Mexican divorce. The aforesaid separation agreement was incorporated by reference but not merged into the decree. Subsequently, on September 19, 1966, the parties entered into another agreement which purported to modify the agreement of June 29, 1962. Under the 1966 agreement, the respondent agreed to pay child support in the sum of $375.00 per month, per child until said child attains age 21, and provided that support would continue until the child attained the age of 25, if he or she were attending college as a full-time or matriculating student.

The respondent contends that the support provisions contained in the Mexican divorce decree were terminated eo instanti upon the execution of the modification agreement. Perforce, it is contended that the Family Court does not have jurisdiction under F.C.A. § 466(c) since, it is argued, the decree no longer contains a currently viable support provision.

The court concurs with the respondent's position regarding the Family Court's jurisdiction under Family Court Act § 466(c). Clearly, the instant action may proceed only upon a finding that the Mexican divorce decree contains a currently effective provision for support. Silver v. Silver, 36 N.Y.2d 324, 367 N.Y.S.2d 777, 327 N.E.2d 816 (1975); Wertheimer v. Wertheimer, 50 A.D.2d 879, 376 N.Y.S.2d 638 (2nd Dept. 1975). Failing this, the matter must be dismissed with leave to the parties to seek their remedies in the Supreme Court in a plenary action.

The legal effect of incorporating the separation agreement into the divorce decree was the adoption and ratification by the Mexican Court of each and every provision of said agreement. Stated otherwise, the agreement in its entirety was given decretal effect by virtue of its incorporation into the decree.

Since paragraph 18 of the 1962 agreement permitted the parties to modify the provisions of said agreement upon mutual accord, without the necessity of seeking judicial intervention, that part of the decree remains modifiable conditioned only on the mutual consent of the parties. The principal of law enunciated in Washburn v. Washburn, 137 Misc. 658, 244 N.Y.S. 34 (Sup.Ct.Saratoga Co.1930) is distinguishable. In the Washburn case, the court held that parties may not unilaterally modify, alter, vacate or amend court orders absent judicial sanction from the court that issued the decree. Here, the court implicitly permitted the parties to modify that part of the decree incorporating the 1962 agreement. In effect, the decree by its terms, was left open ended, permitting modification of that portion. Perforce, any such modification must be given decretal enforcement.

It is axiomatic, that the private settlement of disputes should be encouraged and litigation discouraged. Galusha v. Galusha, 116 N.Y. 635, 646, 22 N.E. 1114, 1117. This is a principal reason that the courts are reluctant to alter a support obligation fairly made and based upon the mutual assent of the parties. McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185 (1965). As stated by Judge Nanette Dembitz, in Matter of Juliette S. v. Williams S., 79 Misc.2d 765, 767, 360 N.Y.S.2d 970, 973 (Fam.Ct.N.Y.Co.1974) a case wherein the court gave decretal force and effect to the modified agreement, "Obviously it would defeat these policies to hold that petitioner could via the decree, enforce the original agreement despite solemn modification of it."

To hold otherwise in the instant case would produce an inequitable result relegating parties and the state to protracted litigation each time modification of the support provision of the decree is sought to be enforced. Indeed, the policy of Article 4 of the F.C.A. i. e. to provide a speedy remedy to obtain support, Silver v. Silver, 36 N.Y.2d 324, 367 N.Y.S.2d 777, 327 N.E.2d 816 (1975), and the policy favoring private resolution of disputes, are best served through granting decretal enforcement of the modified agreement.

The respondent's reliance on Van Name v. Applegate, 44 A.D.2d 726, 354 N.Y.S.2d 719 (2nd Dept. 1974) is misplaced. There, the plaintiff and defendant obtained a Mexican divorce decree which incorporated but did not merge their separation agreement. The plaintiff commenced the action to enforce an agreement entered into after the defendant defaulted in making a lump sum payment due under their separation agreement. In addition the plaintiff sought counsel fees pursuant to D.R.L. 238. The matter was settled by the parties. The Appellate Division denied the application for counsel fees under D.R.L. § 238 since they held the action was not one "to compel the payment of a sum of money required to be paid by the Mexican decree." Supra at 726, 354 N.Y.S.2d at 721. The court stated that the substituted promise "was an essentially different undertaking than that contained in the separation agreement . . . " Supra at p. 727, 354 N.Y.S.2d at p. 721.

Unlike the agreement in Van Name, supra, the modification agreement in the case at bar was, in fact, authorized by the Mexican divorce decree and, by virtue of the terms of the decree, the modification agreement is deemed incorporated therein, and is endowed with a decretal identity.

Relying on F.C.A. § 413, the respondent seeks dismissal of that part of the petition seeking child support for...