Gewirtz v. Gewirtz

189 A.D. 483, 178 N.Y.S. 738, 1919 N.Y. App. Div. LEXIS 4700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1919
• Status: Published

Opinions

Page, J.:

The plaintiff obtained a decree of separation from her husband, wherein he was adjudged to pay her $10 a week alimony. The defendant failed to pay, and when he owed $1,140 a motion to punish him for contempt was granted. The defendant thereupon threatened to suffer confinement rather than pay, in fact he expressed a keen desire to go to jail rather than pay. Under duress of this threat the plaintiff was induced to enter into an agreement on August 12, 1918, whereby in consideration of the payment of $1,140 to the plaintiff, and in consideration of the defendant waiving his “ desire to go to Ludlow Street Jail,” the parties agreed to live separate and apart, and the plaintiff agreed to accept the payment of the $1,140 in full satisfaction of her support, maintenance and alimony for the past and in the future until they should again be reconciled and live together as husband and wife. The agreement also provided that the plaintiff agreed to consent to the vacation of the decree and order entered in the action. In pursuance of this last provision of the agreement a stipulation was entered into, signed by the attorneys for the respective parties in the action and by the parties individually, that in view of the amicable adjustment of the controversy between the parties the said action and all proceedings be discontinued without costs and the decree of the court theretofore entered be vacated, set aside and declared null and void, as if no such action was ever commenced, nor such decree entered, and that an order to that effect might be entered without further notice. No application was made to the court under said stipulation and the decree remains of record.

On June 18, 1919, a certified copy of the decree together with notice of entry thereof, and a duplicate original power of attorney, was served on the defendant and demand made for the payment of the sum of $530 due for alimony under the said decree. Payment being refused, an order to show cause why the defendant should not be punished for a contempt of court was served. The learned justice at Special Term denied the motion upon the ground that until the agreement and stipulation were set aside they defeated the plaintiff’s right to any further payments, as provided in the decree.

It is the settled law of this State that the only method by which a decree of separation can be revolced is that pre•scribed by section 1767 of the Code of Civil Procedure, and the only method by which the provision therein for alimony may be annulled is that set forth in section 1771, and in each instance it can only be done by the court. No agreement of the parties has any effect on the decree unless it is ratified and made effective by judicial sanction. (Jones v. Jones, 90 Hun, 414; Hobby v. Hobby, 5 App. Div. 496.) The decree in this case, therefore, remained in full force and effect.

There was no consideration for the agreement, nor did it affect the status of the parties. It purports to be an agreement of separation, but the parties were already separated by a decree of the court. It purports to be made in consideration of the payment of $1,140. The defendant was not only at that time legally bound to pay that sum to the plaintiff, but he had been adjudged guilty of a contempt of court for failure to pay to her that very sum. His failure to pay was shown to be a flagrant contempt of the decree of the court, for he demonstrated his ability to comply with the decree by making the payment upon the execution of the agreement. His contempt was, therefore, contumacious. That he escaped punishment for his contempt operated to his benefit and not to the plaintiff’s advantage.

The agreement was void, as against public policy, as evidenced by the statutes of the State. Section 51 of the Domestic Relations Law among other things provides: “A husband and wife can not contract * * * to relieve the husband from his liability to support his wife.” By this is not meant that the wife may not agree to accept a gross sum in lieu of a provision for periodical payments for future support and maintenance if fair and reasonable, and entered into in good faith. (Greenfield v. Greenfield, 161 App. Div. 573; Van Ness v. Ransom, 164 id. 483; affd., sub nom. Parsons v. Macfarlane, 220 N. Y. 605; Levy v. Dockendorff, 177 App. Div. 249.) In the case under consideration there was no payment for future support. The only sum paid was that allowed by the court for present maintenance, which by the failure of the defendant to pay had become due and owing for support and maintenance theretofore. Therefore, the purport of this agreement was to absolutely release the husband from all liability to support his wife.

The most that the defendant was entitled to, in consideration of his payment of the $1,140, was a discontinuance of the proceeding to punish him for contempt. This he received. He complains that he waived his desire to go to jail for contempt of court. He being again in contempt, the opportunity of fulfilling that desire will be restored to him by the granting of this motion.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Latjghlin and Dowling, JJ., concurred; Clarke, P. J., and Merrell, J., dissented.