Thompson v. Lindblad

• Decision Date: 15 December 1986
• Citation: 509 N.Y.S.2d 389,125 A.D.2d 460
• Parties: Sally THOMPSON, Appellant, v. Richard LINDBLAD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 389

509 N.Y.S.2d 389

125 A.D.2d 460

Sally THOMPSON, Appellant, v. Richard LINDBLAD, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 15, 1986.

Ann Smith Coates, Setauket, for appellant.

Before BROWN, J.P., and NIEHOFF, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Levitt, J.), dated September 26, 1985, which denied her motion, inter alia, for leave to enter a money judgment for arrears of child support and payments for the maintenance of the former marital home, and for upward modification of these obligations.

ORDERED that the order is modified, on the law and facts, by granting the motion to the extent of deleting therefrom the provision denying those branches of the plaintiff's motion for an upward modification of child support and for a computation of child support arrears accruing within six years prior to the institution of this proceeding. As so modified, order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing with respect to those branches of the plaintiff's motion, and without prejudice to the plaintiff to seek enforcement of the provisions of the parties' separation agreement by way of a plenary action.

The parties to this action entered into a separation agreement dated September 30, 1975, and executed a rider thereto on May 6, 1977. They were divorced by a judgment of the Supreme Court, Suffolk County (Lazer, J.), dated July 5, 1977. The judgment requires that the husband make child support payments of $25 per week per child and further provides that the separation agreement would survive and would not be merged in the judgment. The remaining obligations of the husband which the wife seeks to enforce in this proceeding, e.g., monthly home maintenance payments and medical and life insurance provisions, are based upon the provisions of the separation agreement.

Preliminarily, we must address the procedural posture of this case. While we recognize that a motion pursuant to Domestic Relations Law § 244 provides a much more expeditious, economical and less onerous means for a spouse to obtain enforcement of post-marital support obligations than does a plenary action, under existing case law, the provisions of the Domestic Relations Law are available for enforcement only where the judgment of divorce or a subsequent order contains specific language directing the payment of a sum of money (see, Baker v. Baker, 66 N.Y.2d 649, 495 N.Y.S.2d 959, 486 N.E.2d 817; Baratta v. Baratta, 122 A.D.2d 3, 504 N.Y.S.2d 175 Sileo v. Sileo, 115 A.D.2d 535, 495 N.Y.S.2d 728). At bar, the separation agreement was not merged in the judgment of divorce and neither the judgment of divorce nor a subsequently entered order of the Family Court in this case directed payment of any sums of money other than for child support. Accordingly, the plaintiff was entitled to a determination only with respect to her claims for upward modification of child support and any arrears thereof. The plaintiff's remaining claims regarding other obligations arising under the separation agreement may only be enforced by means of a plenary action.

Special Term concluded that the plaintiff's failure to seek enforcement of the terms of the agreement and the judgment over an eight-to-ten-year period constituted a waiver of these rights. We disagree. While parties may waive their rights...