Miller v. Miller

271 A.D.2d 974

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1947
• Docket: Order of an official referee, made after hearings, modifying the provisions of a judgment of separation, modified on the law and the facts by striking the figures “ $90 ” from the second decretal paragraph and substituting in place thereof the figures “ $75 ”; by striking the figures “ $500 ” from the fourth decretal paragraph and substituting in place thereof “ $250 ”; and by eliminating the fifth decretal paragraph entirely. As thus modified, the order, insofar as appealed from, is affirmed, without costs. In the opinion of the court, the proof in the record does not warrant the increase in weekly payments suggested by the learned official referee, but does justify an increase to the sum of $75 per week. The allowance for counsel fees on the motion was excessive. The plaintiff asked no relief from the provisions contained in the judgment restraining her from visiting the place of employment of the defendant and in otherwise communicating with him or his office, and that matter was not the subject of proof. . It should not have been struck out on the official referee's motion
• Status: Published

Opinion

Order and judgment unanimously affirmed, without costs. The plaintiff sues (1) to set aside a separation agreement, and (2) for a divorce upon the ground of adultery. The defendant moved under subdivision 5 of rule 107 of the Buies of Civil Practice, to dismiss both causes of action on the ground that there is an existing final judgment and decree of a court of competent jurisdiction, rendered on the merits, determining the same causes of action stated in the complaint. The judgment roll of the prior action, made a part of the motion papers, establishes without contradiction that this plaintiff went to Idaho in 1941 and .obtained a decree of divorce from the defendant in an action in which she was the plaintiff, and in which the defendant appeared by a duly authorized attorney. As a part of the decree of the Idaho court the validity of the separation agreement, previously entered into between the parties, was expressly adjudicated, and both plaintiff and the defendant were directed to comply with the terms and conditions thereof. Under these circumstances, the Idaho decree of divorce is valid in this State (Shea v. Shea, 270 App. Div. 527), and the plaintiff may not maintain in this State the alleged cause of action to set aside the separation agreement. (Schacht v. Schacht, 295 N. Y. 439.) Carswell, Johnston and Nolan, JJ., concur; Hagarty, Acting P. J., concurs on authority of Shea V. Shea (270 App. Div. 527); Aldrich, J., deceased. [See post, p. 1017.]