1 Misc. 2d 731 | N.Y. Sup. Ct. | 1956
The plaintiff wife moves for the entry of judgment in the sum of $2,598, representing arrears allegedly unpaid under a divorce decree. On the argument, both parties agreed that there should be a reference to determine the amount for which judgment is to be entered for the unpaid maintenance for the child. The only issue that remains is that of the plaintiff’s claim for herself.
The judgment — interlocutory on March 18, 1948, and final as of course three months later — provided for weekly alimony of $10 for the wife and weekly support of $15 for the child of the parties (custody being in the wife). No payment whatsoever was made by the husband to the wife on account of the $10 weekly alimony. The plaintiff relies upon the decree, which provides for payments to her. But, in the circumstances of this case, I am not of the view that the decree can be looked at in a vacuum.
As I have said, the defendant' did not at any time pay any alimony to the plaintiff, and now I add that none was demanded by her until the making of the present motion. In 1951, the plaintiff married another, and by that other has given birth to and reared a family. It is quite clear that there is no legal basis whatsoever for any claim by the plaintiff for the period subsequent to the date of the plaintiff’s remarriage (Holiber v. Holiber, 207 Misc. 716). It is therefore only the antecedent period which concerns us now.
Great weight is of course to be given to the terms of the divorce decree. Its provisions are not lightly to be cast aside. But the entry of a money judgment does not — as does the night follow the day — inexorably follow from the conceded nonpayment of the sums provided for in the decree. Section 1171-b of the Civil Practice Act provides in part that where “ the husband * * * makes default in paying any sum of money as required by the [matrimonial] judgment * * *, the court
Nevertheless, I find adequate aid — dehors the statute — in recognized legal principles of law and equity. The issue, as I see it, is whether the support provision for the plaintiff herself has been effectively waived by her (Bowman v. Bowman, 271 App. Div. 943; Gehring v. Gehring, 262 App. Div. 1065). Parties may waive their rights under a contract or under a decree whether foreign or domestic when there is no law preventing waiver ” (Rehill v. Rehill, 281 App. Div. 855, 856, revd. on other grounds 306 N. Y. 126). Payments for alimony and for support of children, though required to be made by agreement and judgment, may be waived ” (Axelrad v. Axelrad, 285 App. Div. 903, 904, affd. 309 N. Y. 687). What is the legal situation when the express agreement, which foregoes personal support, was made by the wife before and not after the judgment awarding it? None of the cases that have been cited to me is on all fours with the case at bar. I am of the view, in the circumstances of the instant case, that the fact that the judgment was entered subsequent to the execution of the agreements is not conclusive. For the judgment appears to have been made as it was, not because the plaintiff desired it so, but because the Referee and the court willed it so. And, while the judgment (with the personal alimony provision included) was entered upon notice to the defendant, the plaintiff, for many years thereafter, did nothing whatsoever to enforce the clause favorable to her, notwithstanding complete noncompliance on the part of the defendant. I do not hold here that there necessarily was a waiver, but it seems to me that waiver there may have been — by later conduct or arrangement coupled with the earlier written agreements, and subject, of course, to the facts giving rise to
All the facts must be ascertained. They cannot be definitely determined on the papers alone. As in Renkoff v. Renkoff (285 App. Div. 876, 877) I “ deem that it would be preferable to have the Official Referee inquire into all the facts and circumstances as to nonpayment of alimony and nonentry of judgment over the years ’ ’. There will be a reference accordingly. Settle order.