Tytel v. Tytel
| Decision Date | 26 April 1982 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Barbara TYTEL, also known as Barbara Goldenbert, Plaintiff and Respondent, v. Bernard TYTEL, Defendant and Appellant. Civ. 62812. |
Dubin, Grosberg & Benjamin, Leonard R. Dubin, Los Angeles, for defendant and appellant.
Saul S. Kreshek, Alex J. Rose, Los Angeles, for plaintiff and respondent.
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This appeal is from the trial court's order granting plaintiff and respondent's motion for partial summary judgment on respondent's second cause of action to enforce support obligations due under the terms of a written marital settlement agreement entered into by the parties in the state of New York on September 13, 1971. The second cause of action was for breach of the settlement agreement.
On October 21, 1980, the trial court ordered appellant/defendant to pay support payments pursuant to the parties' written marital settlement agreement of September 13, 1971, regardless of the fact that the New York judgment of divorce had been established as a California judgment and spousal support by the husband had been lowered below the terms of the marital settlement agreement.
Appellant and respondent were married on November 15, 1952, in the City of New York, State of New York. There were two children born of the marriage, Jan (born December 8, 1954) and Nancy (born November 24, 1958).
On September 13, 1971, appellant and respondent entered into a written separation agreement in the State of New York. The agreement provided, inter alia, that appellant would make certain monthly child and spousal support payments to respondent.
Under the terms of the separation agreement, appellant was obligated to pay respondent the sum of $750 in semi-monthly payments for spousal support, and the sum of $250 per child in semi-monthly payments for child support. The child support payments for each child ceased, upon each child attaining majority, and the spousal support payments to respondent were increased to the sum of $833.33 per month when Jan Tytel reached majority, and to the sum of $916.67 per month when Nancy reached majority (which, in the State of New York was age 21).
The separation agreement provides that the spousal support is to continue until respondent remarries or until the death of either party. The agreement expressly provides that the terms and obligations of the agreement would survive any such decree of divorce or judgment and would remain binding upon the parties.
Said agreement provided:
(Emphasis added.)
On January 31, 1975, a final judgment of divorce was entered by the Supreme Court of the State of New York. The support provisions of the marital settlement agreement (paragraphs Two and Three) are set forth in haec verba in the judgment of divorce.
This action was commenced by respondent on March 14, 1979, with the filing of a complaint to establish the parties' New York judgment and divorce as a California judgment and to enforce the child and spousal support provisions thereof.
Simultaneously with the filing of his amended answer to the complaint admitting the validity of the New York judgment and its establishment as a California judgment, appellant filed an order to show cause re: modification of spousal support, requesting a reduction in support.
On September 13, 1979, a hearing was held before the Honorable Abraham Gorenfeld, Commissioner, on the order to show cause re modification, at which hearing counsel for the parties stipulated that the New York judgment be established as a California judgment. On September 14, 1979, an order was made reducing support provided for in the New York judgment and directing payment accordingly.
Subsequently, pursuant to leave granted by the court, respondent filed a first amended complaint which contained, in addition to the original cause of action to establish the New York judgment as a California judgment, a second cause of action for breach of the support provisions of the parties' marital settlement agreement. Appellant filed an answer to the amended complaint, again admitting the validity of the New York judgment and its establishment as a California judgment.
On April 5, 1980, respondent filed a "Notice of Motion for Partial Summary Judgment" (sic) with regard to the second cause of action. The motion was granted and judgment entered for a sum representing the difference between the amount of support provided for in the marital settlement agreement and the amount paid pursuant to the order of September 14, 1979.
The judgment also purported to establish the New York judgment as a California judgment for all times and for all purposes with the provision that it "shall not be subject to enforcement by proceedings except as modified herein on 9-14-17" (sic).
1. When the parties' New York judgment of divorce was established as a California judgment, the provisions of their separation agreement relating to child and spousal support were merged into the California judgment and no action could thereafter be maintained upon them.
2. Since the support provisions of the parties' marital settlement agreement were incorporated in and made a part of the New York judgment, subsequently established as a California judgment, and appellant was ordered to comply therewith, those paragraphs were merged into the California judgment and no action could thereafter be maintained by them.
3. That the court order granting partial summary judgment on plaintiff/respondent's second cause of action was an illegal modification of the modification order of September 14, 1979, by Commissioner Gorenfeld because no modification proceedings were pending before the court.
4. That California does not recognize an independent right of action on a marital settlement agreement, some terms of which are incorporated and ordered performed by a dissolution decree, even if New York law allows such an action on contract.
1. That New York law is controlling on the interpretation of the marital settlement agreement and the right to an independent contract action.
2. That the support provisions of the agreement were not "merged" into the New York judgment or the California judgment.
3. That comity and full faith and credit be given to the laws of New York despite any procedural differences.
4. That public policy of the state of California does not preclude the independent contract action on the settlement agreement.
5. That full faith and credit requires that the established California judgment, based on the New York decree, recognize the respondent's right to an independent contract action on the settlement agreement, which is count two of respondent's complaint.
In summary, what appellant is contending is that the respondent/wife who, by operation of New York law where the contract was made and to be performed, had an absolute right to bring an independent contract action to enforce the support provisions of an absolute, unconditional, and nonmodifiable marital settlement agreement, in addition to her right to enforce the support provisions of the New York decree of divorce (which decree provisions are modifiable by New York law) lost the right to her independent contract action because she established the New York decree and judgment as a California judgment first, in order to enforce the decree support provisions in California against appellant who had left New York and gone to California.
These contentions are made on the grounds that the support provisions contained in the New York decree were somehow "merged" into the California judgment by operation of California law and extinguished the right of respondent to bring a separate contract action on the settlement agreement, a right granted by New York law.
These contentions are made despite the following facts:
1. Appellant admits that New York law must be used to interpret the parties' rights under the marital settlement agreement.
2. Appellant admits that the respondent/wife could bring two separate actions in New York, but states she "elected" in California to abandon her contract action.
3. That if the post--1970 action had been brought in California it would have resulted in a nonmodifiable, absolute dissolution decree. (Civ.Code, § 4811.)
4. That appellant/husband voluntarily agreed to the absolute, unconditional and nonmodifiable support provisions in the marital settlement agreement and contract in New York, recognized by both California law (Civ.Code, § 4811, supra), and New York contract law. (Goldman v. Goldman (1940) 282 N.Y. 296, 26 N.E.2d 265; Krueger v. Krueger (1976), 86 Misc.2d 857, 383 N.Y.S.2d 1000; Swartz v. Swartz (1975) 49 A.D.2d 254, 374 N.Y.S.2d 857.)
5. If the action on the contract-agreement had been brought first in California, this appeal would have been without any substance.
The contentions of appellant, although varied and unique, must be denied and the summary judgment affirmed for the following reasons:
I
New York Law does not allow nonmodifiable support decrees but does grant an independent cause of action on a...
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