Silver v. Silver

Steuer, J. (dissenting).

This is an application in the Family Court which sought ‘ ‘ enforcement and modification ” of a Mexican decree of divorce. No question of the validity of the decree is raised. Prior to the divorce the parties had entered into a separation agreement by the terms of which the defendant husband agreed to pay $1,250 per month and furnish certain insurance protection for a period of three years. This agreement was incorporated but not merged in the divorce decree. The payments were made for the three-year period. The instant application seeks to have the payments resumed, to continue until the former wife’s death or marriage.

The jurisdiction of the Family Court in regard to foreign divorce decrees is limited to decrees ‘£ granting alimony or support ” (Family " Ct. Act, § 466, subd. [c]). Consequently it is beyond dispute that if the foreign decree makes no provision for alimony it is beyond the power of the Family Court to order it. The question here is whether a decree is to be construed as of the date of its entry or as of the date of the application to amend. Plainly, had this been an application to increase the amount of the award during the three-year period when it was viable, there would have been jurisdiction. But if the decree is read currently, there is no remaining provision for support. Whenever the question has arisen the decree has consistently been read as it provided at the time of the application. In Ludwig v. Ludwig ,(89 A D 2d 456) this court had ¡before it a Florida decree which originally provided for alimony in the sum of $200 per month. Later the decree was amended to provide that upon payment of the lump sum of $3,000 the alimony would terminate. We held there was no jurisdiction to modify the decree. (See, also, Matter of Calwil v. Calwil, 41 A D 2d 529.) The sole distinction is that in this case no alimony is currently provided by the terms of the original decree and in Ludwig no alimony is provided by amendment of the original decree. The difference is without legal distinction.

It is argued that the provision in the separation agreement providing for termination of the support payments after three years is void. And so it may be. That does not affect its validity in the foreign decree. The foreign court may make any provision for support, or no provision at all, as it deems proper. The mere fact that the court adopted a provision that would be void in an agreement does not void the decree, nor can the decree be read as if the provision were not made.

The order of the Family Court should be affirmed.

Kupferman and Lupiano, JJ., concur with Capozzoli, J.; Steuer, J., dissents in an opinion in which Markewich, J. P., concurs.

Order, Family Court of the State of New York, New York County, entered on February 7,1974, reversed, on the law, without costs and without disbursements, and the matter remanded to the Family Court.