Calwil v. Calwil

Appellate Division of the Supreme Court of New York

Calwil v. Calwil

41 A.D.2d 529, 339 N.Y.S.2d 962, 1973 N.Y. App. Div. LEXIS 5224

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 29, 1973

StatusPublished

This text of 41 A.D.2d 529 (Calwil v. Calwil) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Calwil v. Calwil, 41 A.D.2d 529, 339 N.Y.S.2d 962, 1973 N.Y. App. Div. LEXIS 5224 (N.Y. Ct. App. 1973).

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Opinion

Order of the Family Court of the State of New York, New York County, entered on October 28, 1970, dismissing a petition to modify the provisions of a Mexican divorce, modified, on the law, to strike the words “ without prejudice to a renewal ” from the last decretal paragraph and otherwise affirmed, without costs and without disbursements, and without prejudice to an application for counsel fees. The statute requires as a condition precedent to the relief sought both the existence of a valid decree of divorce, separation or annulment and a provision in that decree granting alimony or. support (Ludwig v. Ludwig, 39 A D 2d 456). Concur — Markewieh, J. P., Murphy, Lane and Capozzoli, JJ. Kupferman, J., dissents in part in the following memorandum: While I otherwise concur in the court’s decision, I would affirm that part of the order of the Family Court that dismisses “ without prejudice to renewal ”. While the separation agreement entered into in New York State prior to the divorce decree should control, there can be situations where the wife may show a proper basis for some support. " (McMains v. McMains, 15 N Y 2d 283; Calwil v. Calwil, 34 A D 2d 535, 536, app. dsmd. 27 N Y 2d 726; Gardner v. Gardner, 40 A D 2d 153.) Ludwig v. Ludwig (39 A D 2d 456) does not change the situation. There Florida was the prime contact not New York, and so we had no reason to look behind the Florida decree. (See, in general, Law and the Family, Foster & Freed, N. Y. L. J., Jan. 26,1973, p. 1, col. 1, p. 4, col. 3.)

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Order of the Family Court of the State of New York, New York County, entered on October 28, 1970, dismissing a petition to modify the provisions of a Mexican divorce, modified, on the law, to strike the words “ without prejudice to a renewal ” from the last decretal paragraph and otherwise affirmed, without costs and without disbursements, and without prejudice to an application for counsel fees. The statute requires as a condition precedent to the relief sought both the existence of a valid decree of divorce, separation or annulment and a provision in that decree granting alimony or. support (Ludwig v. Ludwig, 39 A D 2d 456). Concur — Markewieh, J. P., Murphy, Lane and Capozzoli, JJ. Kupferman, J., dissents in part in the following memorandum: While I otherwise concur in the court’s decision, I would affirm that part of the order of the Family Court that dismisses “ without prejudice to renewal ”. While the separation agreement entered into in New York State prior to the divorce decree should control, there can be situations where the wife may show a proper basis for some support. " (McMains v. McMains, 15 N Y 2d 283; Calwil v. Calwil, 34 A D 2d 535, 536, app. dsmd. 27 N Y 2d 726; Gardner v. Gardner, 40 A D 2d 153.) Ludwig v. Ludwig (39 A D 2d 456) does not change the situation. There Florida was the prime contact not New York, and so we had no reason to look behind the Florida decree. (See, in general, Law and the Family, Foster & Freed, N. Y. L. J., Jan. 26,1973, p. 1, col. 1, p. 4, col. 3.)

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Bluebook (online)

41 A.D.2d 529, 339 N.Y.S.2d 962, 1973 N.Y. App. Div. LEXIS 5224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calwil-v-calwil-nyappdiv-1973.