8 A.D.2d 516 | N.Y. App. Div. | 1959
Lead Opinion
Appellant, Myrtle Snow, obtained a judgment of separation against her husband, Howard Snow, now deceased, on October 29,1956. It was thereby provided that the husband pay, in lieu of weekly or monthly payments of alimony, ‘£ a lump sum” of $16,000, to be paid $3,500 within one week after the date of the judgment, $7,500 within six weeks after October 2, 1956, and the balance of $5,000 within one year after the date of the judgment. The husband died on October 23, 1957, having paid only $3,500. A claim for the unpaid balance having been rejected by the respondent, the executrix of his estate, this action was commenced for a money judgment.
The motion to dismiss the complaint was made on the ground that the Supreme Court had no jurisdiction of the subject matter of the action and on the ground that the complaint failed to allege sufficient facts to constitute a cause of action. It appears to have been granted on both grounds.
In granting the motion to dismiss the learned Justice at Special Term was of the opinion that if Howard Snow were alive, any claim for unpaid alimony under the terms of the judgment could not be made the basis of an independent action but would have to be made under section 1171-b of the Civil Practice Act. He concluded that since Howard Snow is dead and relief under section 1171-b is therefore unavailable, relief must be sought ££ under section 211 of the Surrogate’s Court Act ”, (13 Misc 2d 966, 967.)
In our opinion, the complaint was properly dismissed. Appellant does not seek relief in equity as a judgment creditor (cf. Wetmore v. Wetmore, 149 N. Y. 520), nor does she ask for a determination and declaration of her rights under the judgment.
Her action is, concededly, one at law to collect money claimed to be due and unpaid under a matrimonial decree directing payment of alimony. Concededly, also, no final judgment for the
There is no question as to the jurisdiction of the Supreme Court to entertain an action on a judgment (see Civ. Prac. Act, § 484; Harris v. Steiner, 30 Misc. 624). However, in such an action it must appear that the judgment sued on is final, for a sum certain in money, that it may be enforced by execution, and that it is not subject to modification by the court which rendered it (MacDougall v. Hoes, 27 Misc. 590; Matter of Van Beuren, 33 App. Div. 158; 2 Freeman, Judgments [5th ed.], § 1065). The judgment which appellant seeks to enforce is obviously not of that character (Civ. Prac. Act, §§ 1170, 1171-b).
Prior to the enactment of section 1171-b of the Civil Practice Act in 1939, there were many decisions of the courts of this State to the effect that alimony accrued under a judgment in a matrimonial action could be collected by execution in the action under section 504 of the Civil Practice Act and its predecessor statute section 1240 of the Code of Civil Procedure (cf. Miller v. Miller, 7 Hun 208; Thayer v. Thayer, 145 App. Div. 268; Doncourt v. Doncourt, 245 App. Div. 91, affd. 275 N. Y. 470). Under those statutes only a final judgment for a sum of money or directing payment of a sum of money could be so enforced. However, judgments in matrimonial actions directing payment of alimony were viewed by the courts as final since they created vested property rights of which the wife could not be deprived (see Walker v. Walker, 155 N. Y. 77; Livingston v. Livingston, 173 N. Y. 377; Krauss v. Krauss, 127 App. Div. 740; Cary v. Cary, 168 App. Div. 939, affd. 217 N. Y. 670). Consequently, although it was held that authority to award temporary alimony and the means for its enforcement rested exclusively upon statutory provisions, different principles were applied to permanent alimony under a final decree which, when accrued, was considered to be in the nature of a judgment debt which could be docketed as a judgment and enforced by execution. (Boncourt v. Boncourt, supra; Thayer v. Thayer, supra.) Under that interpretation of the law, it is not surprising that there were also decisions which indicated that accrued, permanent alimony could be collected in an independent action brought to enforce the matrimonial decree (cf. Shepherd v. Shepherd, 51 Misc. 418, affd. 117 App. Div. 924; Van Ness v. Ransom, 215 N. Y. 557; Farquhar v. Farquhar, 172 App. Div. 242, 243; see Matter of Curtis, 188 App. Div. 470. affd. 228 N. Y. 534).
Our dissenting brethren have expressed concern that our ruling may lead to an anomaly if applied to cases in which a husband who is in arrears in alimony payments cannot be served with process in this jurisdiction. We see no reason why the inability to make such service of process should necessarily offer any obstacle to the entry of final judgment pursuant to section 1171-b. An application under that section is treated as a motion in an action, so that service of new process is not required for the purpose of acquiring jurisdiction of the husband’s person, as it would be if the alimony decree were sought to be enforced by means of an independent action (Haskell v. Haskell, 6 N Y 2d 79). AE that is required under section 1171-b is such notice as the court may direct. Neither do we find any cause for concern that óur ruling may indicate that judgments of our courts directing the payment of alimony may not be enforced by action in other jurisdictions, while they are subject to retrospective modification in this State. There is no reason why we should expect that such judgments would be enforcible by action in other States while they are subject to modification here. The rule which is followed in this State (see Rossi v. Rossi, 187 Misc. 543, affd. 269 App. Div. 821), and generally in other jurisdictions, is that a judgment for alimony granted in one State may be enforced in another State to the extent of the amount due and unpaid on the decree, and not subject to reduction (Restatement, Conflict of Laws,' § 464). No ruling which we might make in this case could in any way affect the application of that rule in other
The decision at Special Term to the effect that relief could not be available to appellant in this case under section 1171-b because her husband is dead follows our decision in Kahler v. 8earl (261 App. Div. 936). It may be that we should re-examine that determination in the light of the clarification in 1948 of our statutes relating to matrimonial actions (L. 1948, ch. 212). That question need not be determined, however, on this appeal.
The orders should be affirmed, with one bill of $10 costs and disbursements.
Dissenting Opinion
(dissenting). Prior to the enactment of section 1171-b of the Civil Practice Act in 1939 (L. 1939, eh. 431, eff. Sept. 1,1939), an independent plenary action could be brought to recover accrued and unpaid alimony which had been awarded in a judgment in an action for divorce or separation (see Swanton v. Curley, 273 N. Y. 325; Van Ness v. Ransom, 215 N. Y. 557; Shepherd v. Shepherd, 51 Misc. 418, affd. 117 App. Div. 924; Miller v. Miller, 7 Hun 208), and, apart from that remedy, execution could be issued upon such judgment for the accrued and unpaid alimony (Shepherd v. Shepherd, supra; Miller v. Miller, supra). It had further been held, as to the said remedy of execution, that the better practice was to apply to the court for a direction that the amount due be docketed first and that execution be issued thereafter upon the amount thus docketed (Thayer v. Thayer, 145 App. Div. 268). The unpaid amount was regarded as “in the nature of a judgment debt ” (Thayer v. Thayer, supra, p. 269 ) and the awarding of the alimony made the husband ‘ ‘ in effect a debtor owing his wife the amount adjudged and determined by the decree ” (Wetmore v. Wetmore, 149 N. Y. 520, 528). It was also the law prior to the enactment of section 1171-b that the power of the court under section 1170 of the Civil Practice Act to annul, vary or modify the alimony provisions was a power that could be exercised retrospectively (Karlin v. Karlin, 280 N. Y.32) and that the duty of the court to annul an award of alimony in a judgment of divorce in the event of the wife’s remarriage, under present section 1172-e of the Civil Practice Act, was also a power that could be exercised retrospectively (Kirkbride v. Van Note, 275 N. Y. 244). The purpose of the enactment of section 1171-b was to overcome the rule that deprived a wife of the ability to enforce collection of arrears of temporary alimony after the entry of final judgment (Treherne-Thomas v. Treherne-Thomas, 267 App. Div. 509; Durlacher v. Durlacher, 173 Misc.
The orders should be reversed and the motions should be denied.
Hallinan and Klbinfeld, JJ., concur with Nolan, P. J.; Wenzel, J., dissents and votes to reverse the orders and to deny the motions in opinion in which Murphy, J., concurs.
Orders affirmed, with one bill of $10 costs and disbursements.