Harris v. Harris

Kupferman and Birns, JJ.,

dissent in part in a memorandum by Kupferman, J., as follows: While we are all in agreement in affirming the granting of plaintiff former wife’s motion to dismiss the defendant former husband’s second affirmative defense and counterclaim in respect to his nonpayment of alimony under the separation agreement, I must dissent with respect to the determination that the defendant husband has made an insufficient showing, on the former wife’s motion for partial summary judgment, to be allowed to pursue his contention that his former wife is remarried. After the separation agreement and its incorporation by reference in a Dominican divorce decree, which decree declared the agreement’s survival and directed the parties to comply with its provisions, the defendant discovered an alleged adulterous relationship by his wife during the marriage prior to the agreement. He contends that this was sufficient fraud to set aside the agreement, under which he was to make alimony payments. (Cf. Christian v Christian, 42 NY2d 63.) We have rejected that contention. He goes on to contend that the wife’s various actions with that alleged paramour are such as to indicate that she may have remarried. This latter contention was rejected by the court at Special Term on the ground that the defendant would have to "lay bare affirmative proof to establish the allegation made”. The circumstances are such as to warrant that this aspect may be further pursued. Obviously, as the former husband, he is not necessarily in a position to have complete information as to his former wife’s current marital status. However, where there is smoldering fire, there may very well be more than smoke.