200 Misc. 704 | N.Y. Fam. Ct. | 1951
There is presented a jurisdictional question
whether this proceeding falls within the ambit of the statutory provision that “ A separation agreement shall in no way preclude the filing of a petition for the support * * * of a wife who is likely to become a public charge ” (N. Y. City Dom. Rel. Ct. Act, § 137, subd. 5).
On April 15, 1950, the parties, who had intermarried on July 26, 1924, entered into a formal written separation agreement, in conventional form, by which the husband agreed to pay to the wife “ in full of his obligation for her care, support and
Concededly, respondent has duly performed such agreement.
It is well established that when the husband is not in default thereunder a separation agreement must be considered in full force and effect and bars the wife from an increase of the stipulated amount despite improvement of the husband’s financial circumstances (Schmelzel v. Schmelzel, 287 N. Y. 21), unless such amount is inadequate to prevent the wife from becoming a public charge (see Kyff v. Kyff, 286 N. Y. 71; cf. “Jenkins” v. “Jenkins”, 179 Misc. 905). “ Such agreements, lawful when made, will be enforced like other agreements unless impeached or challenged for some cause recognized by law. It is not in the power of either party acting alone and against the will of the other to destroy or change the agreement.” (Goldman v. Goldman, 282 N. Y. 296, 300. See, also, Solemene v. Solemene, 229 App. Div. 728; Powers v. Powers, 33 App. Div. 126; Smith v. Smith, 39 N. Y. S. 2d 330, and Sinno v. Sinno, 174 Misc. 869.)
That fundamental doctrine of the law of contracts cuts both ways. On the one hand, it shuts the wife off from participation in any improvement of the husband’s financial circumstances; on the other hand, a diminution of his resources constitutes no legal excuse for nonperformance.
However, there is also another relevant common-law principle, likewise well established, that until the marriage relationship will have been terminated by judgment of divorce, annulment or dissolution, as between the community and the husband the burden of the wife’s support is cast upon the husband, regardless of any fault of either spouse (People v. Schlenkel, 258 N. Y. 224; People v. McCarthy, 257 N. Y. 567, affg. 139 Misc. 746; Anonymous v. Anonymous, 20 N. Y. S. 2d 514).
The above-quoted provision of subdivision 5 of section 137 of the Domestic Relations Court Act of the City of New York is a statutory declaration of that Common-law obligation of a husband to exonerate or indemnify the community from the burden of his wife’s support. It is analogous to the statutory obligation of an adult child for the support of an indigent parent (Dom. Bel. Ct. Act, § 101, subd. 4), which is likewise grounded on the historical concept of “ protection of the public purse ”
However, the undisputed testimony of a duly qualified representative of the department of welfare of the City of New York proved that respondent’s payments of $20 each week (the equivalent of $86.66 a month) exceed the amount of the home relief budget ($76.90 a month) which would be allowed to petitioner if without such, or other, income, and that an application by her to the department of welfare of the City of New York for financial assistance would therefore be rejected. It follows that the instant proceeding lacks the essential jurisdictional requirement that petitioner is at this time likely to become a public charge (cf. Anonymous v. Anonymous, 176 Misc. 103, supra).
It is earnestly argued that the petitioner is nevertheless “ likely to become a public charge ” because the aforementioned $76.90 monthly budget figure does not include the additional allowance for special diet, drugs and free medical care which might be granted to petitioner if and after she had become an eligible recipient of the department of welfare of the City of New York aid, and that her current outlays, including a “ special diet ’ ’, drugs and private medical care, now aggregate more than $20 a week, the excess being defrayed out of her rapidly dwindling bank account. But the evidence showed that the cost of her so-called “ special diet ” has been no more than for an ordinary diet and, also, that, in the opinion of Dr. Henig, director of the medical division of this court, petitioner is physically able to do light work. Moreover, as I had occasion to hold in the analogous case of a mother who had petitioned for an order requiring a son to supplement her annual trust income of $1,100, “ the test of the likelihood of a person’s becoming a public charge is not that individual’s special demands,but rather what constitutes the norm for eligibility for old age assistance or other public aid.” (Anonymous v. Anonymous, 176 Misc. 103,108, supra.)
For the foregoing reasons the petition is dismissed, without prejudice, however, to whatever rights either party may have in any other court in respect of such separation agreement or the marital status, and also with leave to file a new petition in this court when and if the requisite jurisdictional facts hereafter occur. But no new petition shall be filed except with the consent of the Justice then sitting in the Part where the new proceeding would be heard.
Notice shall be given pursuant to the subjoined direction.