Werber v. Werber

• Decision Date: 14 June 1965
• Citation: 262 N.Y.S.2d 679,47 Misc.2d 399
• Parties: Anna WERBER, Plaintiff, v. Moses WERBER, Defendant.
• Court: New York City Court

Page 679

262 N.Y.S.2d 679

47 Misc.2d 399

Anna WERBER, Plaintiff, v. Moses WERBER, Defendant.

Civil Court of the City of New York, New York County, Trial

Term, Part XLIII.

June 14, 1965.

Burton D. Strumpf, New York City, for plaintiff.

Goldhaber & Weber, New York City, Stanley Goldhaber, New York City, of counsel, for defendant.

PATRICK PICARIELLO, Judge.

Action instituted by plaintiff to recover arrears in maintenance and support provided in a separation agreement bearing date October 17, 1963.

The agreement provides for the payment of the sum of $25 weekly to plaintiff for her support and maintenance. It was conceded at trial that such payments were made by defendant until and including the week ending October 9, 1964, after which payments ceased. The agreement further provides for payment of the sum of $15 weekly to plaintiff for the support and maintenance of the infant issue of the marriage. In addition thereto, the agreement reflects defendant's obligation to purchase all necessary clothing and furnishings for said infant, provides for all doctors' bills and hospital expenses that may be incurred on behalf of said infant for which defendant did agree to maintain and pay premiums on insurance, provides for the infant's education and finally provides that defendant give directly to the infant the sum of $10 weekly for personal expenditures. It was also conceded at the trial that both the $15 and $10 weekly payments for the infant's maintenance and support were paid to the plaintiff to the date of trial and, further, that defendant had paid for the infant's clothing and other miscellaneous items up to the month of May 1964, when such payments ceased.

The complaint comprises three causes of action. The first cause is predicated upon defendant's failure and refusal to provide for both plaintiff and the infant pursuant to said agreement; the second cause seeks a recovery of various sums of money allegedly expended by plaintiff after May 1964 for the infant other than the $25 weekly received by her on account of said infant's maintenance as provided for in the agreement; the third cause was withdrawn during the trial.

Defendant's answer includes three separate defenses, viz.: (1) that the subject agreement is void since it violates former Section 51 of the Domestic Relations Law; (2) that plaintiff violated the terms of said agreement by interfering with defendant's visitation right; and (3) that the Court lacks jurisdiction. Also included in the answer is defendant's counterclaim to recover the sum of approximately $5000 paid to the plaintiff under the agreement.

In view of the concessions made during the course of the trial, the only issues to be resolved herein are those raised by the separate defenses.

With reference to the first defense: the first consideration concerns itself with the factual finding. Defendant testified that this was the parties' second separation; that this agreement was entered into to enable the plaintiff to obtain a divorce; and that simultaneously with the execution of the separation agreement he executed a power of attorney authorizing his appearance in a Mexican court in such divorce proceeding. Although this was denied by plaintiff, defendant's testimony is conclusively documented by a portion of the preamble contained in the Mexican divorce decree. On December 31, 1963 a Decree of Divorce was granted by the Civil Court, Bravos District, city of Juarez, Chihuahua, Mexico, in favor of the wife and against the husband in which action the latter appeared by attorney. The decree further refects that the husband's attorney appeared in said proceeding by virtue of a power of attorney granted on October 17, 1963 by the husband in the County and State of New York, and, 'in accordance with the authority granted in such mandate' the husband's attorney 'confessed the (wife's) complaint in all its parts, ratified the (separation) agreement entered into by the parties, submitted his constitutent (husband) to the jurisdiction of this Court and prayed. * * *'

It is significant to note that the separation agreement is dated October 17, 1963 and the divorce decree is dated just about ten weeks later, viz., December 31, 1963. Under all the circumstances the Court finds that the separation agreement was predicated upon the collateral oral understanding that plaintiff was to proceed to Mexico to obtain a divorce. This collateral oral understanding tended to alter or dissolve the marriage status between the parties and thus invalidated the written separation agreement and constituted a violation of Section 51 of the Demestic Relations Law.

The more momentous consideration to be given to this defense is whether the same is available to the defendant under all the circumstances of this case.

Notwithstanding defendant's opportunity to put in issue the validity of this agreement in the Mexican forum, he permitted the same to be approved and incorporated in the divorce decree obtained by the plaintiff. Paragraph Third of said decree reads as follows: 'The separation agreement entered into between the spouses on October 17, 1963 * * * is hereby approved in all its parts, the same being incorporated by reference into this decree as if fully set forth herein, but said agreement is not merged herein but shall survive the decree and shall continue to have full legal force and effect.' (see, Fink v. Goldblatt, 18 A.D.2d 629, 235 N.Y.S.2d 56, aff'd without opinion, 13 N.Y.2d 957, 244 N.Y.S.2d 457, 194 N.E.2d 423; McLinden v. McLinden, 286 App.Div. 1033, 146 N.Y.S.2d 679; Baylek v. Baylek, 25 Misc.2d 391, 206 N.Y.S.2d 359.)

The case of Viles v. Viles, 14 N.Y.2d 365, 251 N.Y.S.2d 672, 200 N.E.2d 567, cited by defendant in support of its defense, does not apply. It is easily distinguishable from the case at bar since the separation agreement was not incorporated in or made a part of the divorce decree in that case.

Moreover, defendant accepted the sum of $15,000 paid by the plaintiff pursuant to the provisions of the separation agreement and which represented his undivided one-half interest in the domicile premises owned by the parties as tenants by the entirety. Most significant of...