193 A.D. 686 | N.Y. App. Div. | 1920
The motion was predicated solely on section 1771 of the Code of Civil Procedure, which, so far as material here, provides that where an action is brought by the wife and a final judgment for divorce has been granted in her favor, the court upon the application of the defendant on due notice and on proof of the remarriage of the plaintiff after the final decree must by order modify the judgment and any orders made with respect thereto by annulling the provisions thereof directing the payment of money for the support of the plaintiff. The final judgment of divorce was granted and entered on the 14th day of March, 1916. The moving papers show that on the 18th day of March, 1919, plaintiff remarried. By the final judgment it was ordered, adjudged and decreed that the plaintiff should have the custody of the infant daughter of the parties and that the defendant should pay to the plaintiff the sum of $5,200 per annum during her natural life in equal weekly installments from the 23d day of September, 1915, and the further sum of $2,600 per annum in equal weekly installments from the same date so long as she lived and remained unmarried, and contained other provisions requiring the defendant to make payments to the plaintiff for the support and maintenance of the daughter during infancy and for payments to her after she attained her majority.
The action was commenced in 1915 and the issues were referred to a referee to hear, try and determine. There was also a controversy between the parties with respect to property interests of considerable magnitude. That controversy was settled by mutual agreement and the settlement was embodied in a separation agreement in writing made between the parties on the 23d day of September, 1915, while the reference was pending. It appears thereby that in consideration of the relinquishment by the. plaintiff of her claim to certain specified property, the ownership of which was also claimed by him, the defendant agreed to pay her the sum of $5,200 per annum in weekly installments during her natural life and the agreement contained other provisions for the payment of money by the defendant to the plaintiff for the support and education of their child during infancy and to the child after attaining majority. By a stipulation in writing made between the
The learned court at Special Term was of opinion that the provision for the payment of $5,200 per annum to the plaintiff was based on the separation agreement and founded on an independent consideration and, therefore, was not a provision for the support of the plaintiff within the contemplation of the provisions of section 1771 of the Code of Civil Procedure; and that since by the expressed terms of the judgment payment of the additional sum of $2,600 per annum by defendant to plaintiff terminated on her remarriage, it was unnecessary to strike that provision from the judgment.
We are of the opinion that the learned court erred in refusing to strike from the judgment the provision for the payment of $2,600 per annum, for, although that provision was only to continue while the plaintiff remained" unmarried, it was to be a charge upon the estate of the defendant even after his death and neither he nor his next of kin or heirs or devisees or personal representatives should be left to present proof of the plaintiff’s remarriage to meet an application to enforce the payment of the money by contempt proceedings or otherwise. It is quite clear, however, that the provision for the payment of $5,200 per annum by the defendant to the plaintiff survived her remarriage. That was not a provision such as is made in a divorce action for support and maintenance but was an agreement on the part of the defendant made to avoid litigation between him and the plaintiff with respect to their property and in settlement of the plaintiff’s claim of ownership of certain specified property. It was intended to provide for an annual income to the plaintiff as a condition of her relinquishing her claim to the property. It was not alimony; but the provision for the payment of $2,600 per annum to the plaintiff was for the payment of alimony and the amount of the alimony was fixed at that sum. in view of the fact that by the separation agreement embodying the settlement of the controversy between the parties with respect to their property interests, the plaintiff had an annual income of $5,200 for life. Defend
It follows that the order should be modified by granting defendant’s motion to the extent of striking from the final judgment the provisions for "the payment of $2,600 per annum to the plaintiff, and as thus modified affirmed, without costs.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order modified as directed in opinion, and as so modified affirmed, without costs.