Tauber v. Lebow

• Citation: 493 N.Y.S.2d 1008,483 N.E.2d 1140,65 N.Y.2d 596
• Parties: , 483 N.E.2d 1140 Janice TAUBER, Respondent, v. Melvin LEBOW, Appellant.
• Decision Date: 17 September 1985
• Court: New York Court of Appeals

Page 1008

493 N.Y.S.2d 1008

65 N.Y.2d 596, 483 N.E.2d 1140

Janice TAUBER, Respondent, v. Melvin LEBOW, Appellant.

Court of Appeals of New York.

Sept. 17, 1985.

Morton S. Minsley, New York City, for appellant.

Robert Kruger, New York City, for respondent.

OPINION OF THE COURT

JASEN, Judge.

The principal issue presented on this appeal is whether the causes of action for arrears in alimony and child support are barred by the Statute of Limitations.

The parties were married in 1963 and had two children. On December 4, 1970, they executed a separation agreement, the terms of which were incorporated by reference, but not merged, into a Mexican divorce decree entered on February 9, 1971. Plaintiff wife remarried on April 30, 1976, thereby terminating her right to receive alimony. The present action claiming alimony and child support arrears and counsel fees was commenced by a complaint stating 11 causes of action. Except for the eleventh cause of action seeking counsel fees, the odd numbered causes of action are grounded on the separation agreement and the parallel even numbered causes of action are grounded on the Mexican divorce decree.

By its resettled order, Supreme Court, inter alia, dismissed defendant husband's affirmative defense of the Statute of Limitations, granted summary judgment to plaintiff on her first, second, third, fourth, ninth and tenth causes of action, dismissed the fifth and sixth causes of action on consent, and directed entry of judgment against defendant in the sum of $80,000 with interest. The court held, in part, that a 20-year limitations period was applicable to plaintiff's first and second causes of action for arrears and, consequently, rejected defendant's contention that a six-year limitations barred that portion of plaintiff's arrears claim. Subsequently, judgment was granted to plaintiff for counsel fees.

The Appellate Division, 107 A.D.2d 632, 485 N.Y.S.2d 201, without opinion, reduced the judgment against defendant to $75,400, but otherwise affirmed the order and judgments of Supreme Court. This court granted defendant leave to appeal. We now modify for the reasons that follow. Plaintiff's first cause of action, predicated upon the separation agreement, incorporated into but not merged with a divorce decree, is governed by the six-year Statute of Limitations applicable to contractual obligations. (Galyn v. Schwartz, 56 N.Y.2d 969, 453 N.Y.S.2d 624, 439 N.E.2d 340, modfg. 77 A.D.2d 437, 434 N.Y.S.2d 1; CPLR 213[2].) To the extent that a portion of plaintiff's claim is for arrears in alimony and child support payments which became due more than six years prior to the commencement of this action, that part of the cause of action is time-barred.

Plaintiff's second cause of action, predicated upon the foreign divorce decree, is likewise governed by a six-year time limitation. The 20-year Statute of Limitations provided in CPLR 211 for the enforcement of a money judgment is inapplicable. Alimony and child support payments awarded in a divorce decree do not constitute a judgment debt until the arrearages are reduced through further proceedings to a judgment. (See, Mason v. Belski, 82 A.D.2d 939, 440 N.Y.S.2d 747, lv. denied 54 N.Y.2d 609, 445 N.Y.S.2d 1027, 429 N.E.2d 835; Snow v. Snow, 8 A.D.2d 516, 190 N.Y.S.2d 902; Domestic Relations Law § 244; Family Ct. Act § 466[c][i].) Rather, because there is no time limitation specifically prescribed by statute, the six-year period provided in CPLR 213(1) applies. (See also, CPLR 201.) Hence, as with the first cause of...