Benny v. BennyBenny v. Benny
In a proceeding, inter alia, pursuant to Family Court Act article 4 for maintenance
Ordered that the order dated August 6, 1990, is affirmed insofar as appealed from, and the order dated January 29, 1992, is affirmed, with one bill of costs.
The former wife and the appellant former husband were married on June 16, 1981, and had twin girls on January 9, 1983. They resided together in California until August 6, 1983. The former husband then commenced an action for divorce in California, and the former wife, who had moved to New York, brought the instant proceeding, inter alia, for maintenance and child support. In February 1984 the parties executed a stipulation of settlement in California, which was incorporated, but not merged, into a California judgment of divorce entered June 22, 1984. The separation agreement provided that the California courts would retain jurisdiction over the maintenance provisions and that the New York courts would retain jurisdiction over the child support and visitation provisions in the instant proceeding. The former wife remarried in 1988.
On May 14, 1990, after disputes arose over the visitation provisions of the California stipulation of settlement, the parties placed a stipulation of settlement on the record before the Supreme Court, Suffolk County, in which the former husband agreed to pay arrears due under the California stipulation of settlement and agreed to certain modifications of child support. Thereafter, the former husband moved pursuant to Domestic Relations Law § 248 to terminate maintenance, based upon the former wife’s remarriage. In the order appealed from dated August 6, 1990, the Supreme Court, Suffolk County (Segal, J.), denied the motion, finding that the language of the California stipulation manifested the parties’ intent that the former husband’s obligation to pay maintenance was not conditioned on the former wife’s marital status. The Supreme Court further noted that the former husband
The former husband thereafter moved in the Superior Court of California to terminate his maintenance obligations as a matter of law. That motion was denied on the ground of res judicata, because the Supreme Court, Suffolk County, had already denied his motion for the same relief. The California court ruled that that denial was with prejudice, so long as the order of the Supreme Court, Suffolk County, dated August 6, 1990, remained in effect.
The former wife moved in New York to hold the former husband in contempt for his continued failure to pay maintenance, and the former husband brought a second application in California to "modify to zero” his maintenance obligation. By order dated May 30, 1991, the Superior Court of California, Orange County, granted the former husband’s application, retroactive to March 1991. Specifically, the Superior Court based its decision on "a substantial changes of circumstances”, to wit, that the former wife had remarried and acquired a license to practice law in New York.
By order dated January 29, 1992, the Supreme Court, Suffolk County (Goodman, J.), found the former husband in contempt of court for failure to pay maintenance.
We find that the Supreme Court properly determined, in its decision and order dated August 6, 1990, that the California stipulation of settlement manifested the parties’ intent that maintenance would not terminate as a matter of law upon the former wife’s remarriage. Although it is a matter of public policy in New York that one spouse, upon remarriage, may not compel support from a prior spouse (see, Domestic Relations Law § 236 [B] [6] [c]; Jacobs v Patterson,
Here, the maintenance provisions of the California stipulation of settlement, read in the context of the entire agree
The parties’ California agreement expressly provides that California law would govern maintenance issues. California law permits parties to contract to extend maintenance beyond remarriage (see, Cal Civil Code §4801 [b]; In re Marriage of Sherman v Sherman, 162 Cal App 3d 1132, 208 Cal Rptr 832; In re Marriage of McGhee v McGhee, 131 Cal App 3d 408, 182 Cal Rptr 456; Rheuban v Rheuban, 238 Cal App 2d 552, 47 Cal Rptr 884).
The former husband’s argument that the Supreme Court, Suffolk County, did not have jurisdiction to entertain his application to terminate maintenance based upon the former wife’s remarriage is without merit. The former husband waived the contractual choice of venue contained in the California stipulation of settlement when he moved to terminate his maintenance obligation in the Supreme Court, Suffolk County.
We further find that the Supreme Court, by order dated January 29, 1992, properly found the former husband in contempt of court for his failure to pay any maintenance to the wife since March 1991. Specifically, we find that the Supreme Court was not required to give full faith and credit to the California order dated May 30, 1991. The former husband’s motion to modify his maintenance obligation under the California stipulation of settlement to zero was a sham, the purpose of which was to circumvent the determination of the New York Supreme Court to the contrary. The former husband was guilty of fraud upon the California court (see, Tamimi v Tamimi,
We further note that the former husband relied upon the former wife’s remarriage and her acquisition of a law license in New York as his alleged "changes in circumstance”. Under California stipulation of settlement, the former wife’s remarriage was not a justification for terminating maintenance, and her acquisition of a law license was anticipated by the parties prior to executing that agreement.
The former husband’s due process rights were not infringed by the failure of the Supreme Court to conduct a hearing on the former wife’s contempt application, as no factual dispute existed which could not be resolved on the papers alone (see, Bowie v Bowie,