Farquhar v. Farquhar — 172 A.D. 242

Majority

p. 242

Tennye P. Farquhar, Respondent, v. Norman Farquhar, Appellant.

First Department,

April 7, 1916.

Headnote

Husband and wife — divorce—failure to pay alimony—practice — proper method of enforcing payment of alimony in arrears.

Where a wife has obtained a decree of absolute divorce with permanent alimony, and by alleged duress and false representation has been induced to agree to accept a less sum than that named in the decree, she cannot, in a suit to have the agreement set aside, recover a money judgment for

p. 243

arrears of alimony, for such judgment is in contravention of section 1913 of the Code of Civil Procedure providing that no action can be maintained between the original parties upon a judgment for a sum of money until ten years have elapsed since it was docketed. A final decree in an action for divorce which provides for the payment of alimony by installments is a judgment for the payment of money within the section aforesaid.

It seems, that the plaintiff should docket the amount of unpaid alimony at the foot of the original decree of divorce by motion for that relief, and enforce payment by execution.

Appeal by the defendant, Norman Farquhar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28tli day of October, 1915, upon the decision of the court after a trial at the New York Special Term.

M. J. Moore, for the appellant.

Warren Bigelow, for the respondent.

A final decree of' divorce was entered in favor of the plaintiff awarding her permanent álimony of one hundred dollars per month. Thereafter by duress and false representions she was induced to enter into an agreement whereby she agreed to accept fifty dollars per month until a son of the parties became twenty-one years of age and thereafter twenty-five dollars per month, which payments plaintiff agreed to accept in full payment of the alimony directed to be paid by the decree of divorce. Plaintiff brought this action to set aside the agreement and for judgment for the arrears of alimony. The learned trial justice has found, correctly, upon the evidence that the agreement should be set aside and has given judgment for the arrears of alimony.

To allow this recovery in this action contravenes section 1913 of the Code of Civil Procedure, which provides that an action cannot be maintained between the original parties upon a judgment for a sum of money unless ten years have elapsed since it was docketed. A final decree in an action for divorce which provides for the payment of alimony by installments is a judgment for the payment of money within this section.

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(Shepherd v. Shepherd, 51 Misc. Rep. 418 ; affd., 117 App. Div. 924 .) The plaintiff can docket the amount of unpaid alimony at the foot of the original decree of divorce by a motion for that relief (Thayer v. Thayer, 145 App. Div. 268 ), and can enforce the judgment by execution. (Miller v. Miller, 7 Hun, 208 .)

The 16th finding of fact is erroneous and is reversed. The 38th, 39th, 40th and 41st findings of fact are reversed upon the ground that no issues were litigated as to that contract, and no conclusions of law are based thereon. The 5th conclusion of law is reversed. The decree is modified by striking therefrom the portion thereof that adjudges that the plaintiff is entitled to $3,525 unpaid arrears of alimony and provides for the collection thereof, and as modified is affirmed, without costs.

Clarke, P. J., Laughlin, Soott and Davis, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.

Cases cited

Shepherd v. Shepherd 51 Misc. Rep. 418 N.Y. Sup. Ct. p. 244