Mellen v. Mellen

Appellate Division of the Supreme Court of New York

Mellen v. Mellen

46 A.D.2d 790, 361 N.Y.S.2d 28, 1974 N.Y. App. Div. LEXIS 3664

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

DecidedNovember 12, 1974

StatusPublished

Cited by8 cases

This text of 46 A.D.2d 790 (Mellen v. Mellen) 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

Mellen v. Mellen, 46 A.D.2d 790, 361 N.Y.S.2d 28, 1974 N.Y. App. Div. LEXIS 3664 (N.Y. Ct. App. 1974).

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Opinion

In an action in which a judgment of the Supreme Court, Kings County, was entered July 30, 1974, granting defendant a divorce on his counterclaim, following a nonjury trial, defendant appeals from so much of the judgment as directed that he shall reimburse any social service agency to the extent that it provides support to plaintiff on the basis of her being a public charge. Judgment reversed insofar as appealed from, on the law, without costs. The judgment of divorce was based upon cruel and inhuman treatment (Domestic Relations Law, § 170, subd. [1]). The ninth decretal paragraph thereof provides, inter alia: “ ordered, adjudged and decreed, that commencing with the date of entry of judgment, the defendant is to reimburse any Social Service agency to the extent that it provides support to the plaintiff on the basis of plaintiff being a public charge ”. It is beyond cavil that section 236 of the Domestic Relations Law negates the obligation of a husband to pay alimony to a wife where he has obtained a divorce based upon her misconduct (Hessen v. Hessen, 33 N Y 2d 406, 410-411; Votta v. Votta, 40 A D 2d 532; Math v. Math, 39 A D 2d 583, affd. 31 N Y 2d 693; Smith v. Smith, 60 Mise 2d 692). Although the amount which defendant might have to pay to any social services agency is, undoubtedly, smaller than alimony he would have had to pay had plaintiff succeeded in obtaining a separation and a later divorce, the above-quoted provision nevertheless constitutes a form of alimony. The effect is the same, whether defendant pays the sums directly to plaintiff or through a third party. The decretal paragraph in question circumvents the provisions of section 236 of the Domestic Relations Law by providing by indirection that which the court could not provide directly. Any change with respect to the statutory provisions under which a man is held responsible, directly or indirectly, for the support of his wife, or ex-wife, as in the ease at bar, can be brought about only by the Legislature (see Hessen v. Hessen, supra, p. 412). Shapiro, Acting P. J., Cohalan, Christ, Brennan and Benjamin, JJ., concur.

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In an action in which a judgment of the Supreme Court, Kings County, was entered July 30, 1974, granting defendant a divorce on his counterclaim, following a nonjury trial, defendant appeals from so much of the judgment as directed that he shall reimburse any social service agency to the extent that it provides support to plaintiff on the basis of her being a public charge. Judgment reversed insofar as appealed from, on the law, without costs. The judgment of divorce was based upon cruel and inhuman treatment (Domestic Relations Law, § 170, subd. [1]). The ninth decretal paragraph thereof provides, inter alia: “ ordered, adjudged and decreed, that commencing with the date of entry of judgment, the defendant is to reimburse any Social Service agency to the extent that it provides support to the plaintiff on the basis of plaintiff being a public charge ”. It is beyond cavil that section 236 of the Domestic Relations Law negates the obligation of a husband to pay alimony to a wife where he has obtained a divorce based upon her misconduct (Hessen v. Hessen, 33 N Y 2d 406, 410-411; Votta v. Votta, 40 A D 2d 532; Math v. Math, 39 A D 2d 583, affd. 31 N Y 2d 693; Smith v. Smith, 60 Mise 2d 692). Although the amount which defendant might have to pay to any social services agency is, undoubtedly, smaller than alimony he would have had to pay had plaintiff succeeded in obtaining a separation and a later divorce, the above-quoted provision nevertheless constitutes a form of alimony. The effect is the same, whether defendant pays the sums directly to plaintiff or through a third party. The decretal paragraph in question circumvents the provisions of section 236 of the Domestic Relations Law by providing by indirection that which the court could not provide directly. Any change with respect to the statutory provisions under which a man is held responsible, directly or indirectly, for the support of his wife, or ex-wife, as in the ease at bar, can be brought about only by the Legislature (see Hessen v. Hessen, supra, p. 412). Shapiro, Acting P. J., Cohalan, Christ, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

46 A.D.2d 790, 361 N.Y.S.2d 28, 1974 N.Y. App. Div. LEXIS 3664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mellen-v-mellen-nyappdiv-1974.

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