138 N.Y.S. 633 | N.Y. App. Div. | 1912
Lead Opinion
The parties to this action were husband and wife. Prior to November 15, 1909, the plaintiff commenced an action against the - defendant for an absolute divorce. While this action was pending and on the 15th day of November, 1909, the plaintiff and defendant entered-into a stipulation, entitled in the action, which recited the pendency of the action for the divorce; that it was deemed best by the parties to the action that an arrangement satisfactory to both parties as to alimony and counsel fee be entered into; and it was thereupon agreed between the parties that the defendant would pay $150 in lieu of counsel fee pendente lite, and would also pay to the plaintiff the sum of $20 each week in lieu of all alimony pendente lite, and that these payments should be in full and in lieu of all alimony, support and counsel fees until the granting of the decree in the action, if the same be granted. It was further stipulated, in the event of the plaintiff obtaining a final decree against the defendant, that the defendant would pay to the. plaintiff the sum of $2,080, which should be in full of all counsel fees, costs, disbursements and charges of every nature and kind whatsoever, and in lieu of all claims which the plaintiff had against the defendant, the defendant to pay such sum of $2,080 in equal weekly payments of $20 after the entry of said final decree, said payments and all payments to cease and terminate upon the marriage of the plaintiff or upon the payment of the sum of $150, counsel fee pendente lite, and the said sum of $2,080. And the plaintiff stipulated to accept the aforesaid payments in lieu of all alimony, support, maintenance of any kind and nature whatsoever, and in lieu of all claims which the plaintiff had against the defendant. It was further stipulated that, in view of the above provisions and stipulation, the final
After the execution of this stipulation a decree of absolute divorce was entered in favor of the plaintiff on the- 15th of June, 1910, the defendant appearing in the action and contesting it, and the case was referred to a referee, who reported in favor of the plaintiff. By that judgment the marriage between the plaintiff and the defendant was dissolved and the plaintiff was divorced from the defendant. ISTo provision as to alimony or counsel fee was contained in this judgment, under the provisions of the stipulation to which attention has been called. The defendant continued to pay this sum of $20 a week until June 26,1911; the plaintiff has not remarried but the defendant has, and now lives in Detroit, Mich. The defendant paid under the terms and conditions of this stipulation the sum of $1,770. This would seem to leave $310 of the total amount of $2,080 which the defendant agreed to pay unpaid.
In pursuance of the terms of the stipulation the plaintiff then made this motion to amend the final decree by inserting the provision as to alimony in accordance with the express terms of tthe stipulation executed by the defendant. The defendant appeared and opposed this motion, and the learned judge at Special- Term, being of the opinion that this stipulation was void- upon the ground that it held out an inducement to the plaintiff to obtain a divorce, therefore, denied the motion.
With this conclusion we do not agree. The parties had separated; the plaintiff had commenced her action for divorce; that that action was well founded appears by the subsequent
The case of Lake v. Lake (136 App. Div. 47) was based upon rather peculiar facts, and it was held in that case that a contract could not be enforced under section 21 of the Domestic Relations Law (Laws of 1896, chap. 272), which provided that a husband and wife cannot contract to alter or dissolve the marriage. . The court say in that case: “ Recognizing the right of husband and wife living separate and apart from each other to contract under proper conditions for the proper support and maintenance of the latter, nevertheless, no such contract can be sustained where, as in this case, no benefit is to be derived therefrom by the wife except in the event of the dissolution of the marriage; ” and great stress was laid upon the fact that by the
We think that rule does not apply to a stipulation made in the action, which merely determines the amount of alimony that is to be paid in case a decree be granted, without affecting in any way the rights of the parties in case no decree is granted.
We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted. The amount that is still due can be determined upon the settlement of the order, which must be upon notice.
McLaughlin, Scott and Dowling, JJ. concurred; Clarke, J., dissented.
Dissenting Opinion
I dissent on the ground that as the final decree contained no provision in regard to alimony, the court was without power, after the lapse of two years, to modify that final judgment in the manner proposed.
Order reversed, with ten dollars costs and disbursements, and motion granted; amount still due to be determined on settlement of order. Order to be settled on notice.