Friou v. Gentes , 204 N.Y.S.2d 836 ( 1960 )

Beldock, J.

On June 26,1943 appellant married Jean Spratley in Nassau County. Two children were born of that marriage. On October 10,1953 Jean Spratley Gentes commenced an action for divorce in Vermont on the ground of cruelty. On April 22, 1954 the parties to the divorce action stipulated with respect to custody, visitation, and a fixed amount to be paid by appellant for the support of the children. On June 1,1954 Jean Spratley Gentes was granted a divorce by a judgment which incorporated the provisions of the stipulation. On November 20, 1958 appellant instituted a habeas corpus proceeding in Suffolk County to obtain a change in the custody provisions of the Vermont judgment. Respondent, an attorney, was retained by appellant’s former wife to render the legal services necessary to uphold the provisions of that judgment. Appellant’s application for the change in the custody provisions was denied. In this action to recover from appellant for the value of the legal services rendered by respondent to appellant’s children in the habeas corpus proceeding, motions by both parties for summary judgment and for judgment on the pleadings were denied on the theory that, although appellant is liable for counsel fees for services rendered on behalf of his children, he is not liable for counsel fees for services rendered on behalf of his former wife. The court held that whether the services were rendered on behalf of the former wife or on behalf of the children is a question of fact. The appeal is from only that part of the order which denied appellant’s cross motion.

In our opinion, appellant is liable for the value of the legal services rendered by respondent, whether those services were rendered on behalf of appellant’s former wife or on behalf of his children.

Legal services rendered for a wife or child are necessaries. (Dravecka v. Richard, 267 N. Y. 180; Elder v. Rosenwasser, 238 N. Y. 427.)

The general rule is that, where the court has fixed the amount of alimony to be paid to a wife for her support, the husband’s liability therefor is confined to the amount of the award. The wife is not at liberty to disregard the limit of the award and hold the husband to his common-law liability for necessaries furnished, where the husband complies with the judgment (Turner v. Woolworth, 221 N. Y. 425). The rule is the same where a judgment has been made fixing a defendant’s liability for the support of his child. (Karminski v. Karminski, 260 App. Div. 491; Finn v. Finn, 222 App. Div. 34; Buckler v. Wolman, 190 Misc. 916.) To the extent that Dumay v. Dumay (217 App. Div. 773) and Gellert v. Gellert (128 Misc. 146, affd. 219 App. Div. 737) are to the contrary, they are disapproved.

However, there are several exceptions to the general rule. One, which is inapplicable here, is that, where affirmative action is taken in this State against a defendant to obtain relief not barred by the foreign judgment, he is liable for the services which accomplish that result. (Gutterman v. Langerman, 2 A D 2d 63.) The other, which is applicable here, is that, where the defendant takes affirmative action to change the matrimonial judgment (Fox v. Fox, 263 N. Y. 68; Goldberg v. Keller, 236 App. Div. 541) or fails to obey the judgment (Goldberg v. Keller, supra; Kommel v. Karron, 152 Misc. 294) or otherwise flouts the provisions of the judgment (Cohen v. Kosch, 196 Misc. 1057), he is liable for the legal services made necessary by his action.

Here the respondent is entitled to recover because appellant, long after the entry of the Vermont divorce judgment, brought an affirmative proceeding in this State to vary one of the provisions of the judgment, thus necessitating the employment of respondent to uphold its provisions. In such event, the support provisions of the judgment no longer constitute the limit of appellant’s liability for the necessary legal services furnished, either to the former wife or to the children, in the proceeding. Therefore, the fact that respondent rendered his services with full knowledge of the provisions of the Vermont judgment would not bar recovery.

Insofar as Nardozzi v. Gooding (73 N. Y. S. 2d 784, affd. as to other matters 273 App. Div. 823) is to the contrary, it is overruled. Dravecka v. Richard (267 N. Y. 180, supra) is not to the contrary. There the action was to recover for legal services rendered as counsel to a wife in a habeas corpus proceeding, instituted by her husband (the defendant in a divorce action brought by her) during the pendency of the action and after an allowance pendente lite had been made for counsel fees and for the support of defendant’s wife and children. It was held that the complaint in the action to recover for legal services rendered should be dismissed because the defendant’s liability was measured and fixed by the terms of the order in the divorce action. There, however, the services were rendered before the termination of the divorce action in connection with a common incident of the action, so that the services, in the absence of an increase in the allowance, are deemed to be covered by the award made.

The order, insofar as appealed from, should be affirmed, with $10 costs and disbursements.