The procedural difficulty in this State was, of course, that our courts have no power without statutory authority to grant maintenance to a wife and (before ยง 1170-b was passed) there was no statutory authority to award such alimony except as incidental to a matrimonial action ( Ramsden v. Ramsden, 91 N.Y. 281; Erkenbrach v. Erkenbrach, 96 N.Y. 456; Johnson v. Johnson, 206 N.Y. 561; Weintraub v. Weintraub, 302 N.Y. 104; Civ. Prac. Act, ยง 1170). Recognizing that the doctrine of "divisible divorce" had been firmly established in law ( Estin v. Estin, supra; Lynn v. Lynn, 302 N.Y. 193, cert. denied 342 U.S. 849), the Law Revision Commission and the Legislature set out to remove the procedural bar against a wife's obtaining in the New York courts protection of those rights to support which remained to her after and despite a foreign divorce, even though that foreign divorce had effectively terminated her marriage. Therefore, the purpose, language and effect of section 1170-b support the judgment granted plaintiff in this case.
( General Motors Acceptance Corp. v Clifton-Fine Cent. School Dist., 85 NY2d 232; Alsens Am. Portland Cement Works v Degnon Contr. Co., 222 NY 34; Jefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 2 NY3d 794; Cobble Hill Nursing Home v Henry Warren Corp., 74 NY2d 475; Matter of Express Indus. Term. Corp. v New York State Dept. of Transp., 93 NY2d 584; Imperator Realty Co. v Tull, 228 NY 447; Arnot v Union Salt Co., 186 NY 501; Toplitz v Bauer, 161 NY 325.) II. There is no basis for finding estoppel where there was no misrepresentation and plaintiffs-appellants only refused to conclude an agreement when defendants-respondents refused to pay. ( Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Lynn v Lynn, 302 NY 193; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; White v La Due Fitch, Inc., 303 NY 122; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Michaels v Travelers Indem. Co., 257 AD2d 828; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Byrne v Barrett, 268 NY 199; Wills v Investors Bankstocks Corp., 257 NY 451; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285.) III. The uncontroverted evidence in the record proves that plaintiffs-appellants would have been retained by the Fundamental Funds or sold their business absent competition from the Tocqueville defendants. Seward Kissel LLP, New York City ( Mark J. Hyland and Charles M. Miller of counsel), for respondents. I. The Appellate Division properly affirmed the IAS court's order granting summary judgment dismissing the complaint and denied appellants' cross motion because there is no genuine issue of fact that appellants consented to and arranged for the Tocqueville defendants to "engage in business activit
Plaintiff cites sections 1155 and 1170 of the former Civil Practice Act (now Domestic Relations Law, ยง 236) and former section 51 of the Domestic Relations Law (now General Obligations Law, ยง 5-311) as authorizing the modification. We hold that a separation agreement valid and adequate when made and which contains a nonmerger agreement continues to bind the parties when its terms as to support have been written into a subsequent divorce judgment but that this does not prevent a later modification increasing the alimony when it appears not merely that the former wife wants or by some standards should have more money but that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge ( Fox v. Fox, 263 N.Y. 68, 70; Karlin v. Karlin, 280 N.Y. 32; Kyff v. Kyff, 286 N.Y. 71; Jackson v. Jackson, 290 N.Y. 512; Lynn v. Lynn, 302 N.Y. 193, 204; Hettich v. Hettich, 304 N.Y. 8, 14; Kunker v. Kunker, 230 App. Div. 641; Meyer v. Meyer, 5 A.D.2d 655). Furthermore, since the husband's obligation to support his wife continues after divorce any separation agreement relieving him of his obligation or construed or applied so to relieve him is void under former section 51 of the Domestic Relations Law ( Kyff and Jackson decisions, supra; also Haas v. Haas, 298 N.Y. 69).
The foregoing conclusion is not overcome by the earnest arguments in petitioner's counsel's brief to the effect that (1) the Nevada decree is not entitled to any recognition in New York because it was "obtained by fraud" inasmuch as its asserted ground of extreme mental cruelty on the part of petitioner conflicts with Justice POLIER'S findings in the prior orders of this court that she was entitled to support on a means basis; and (2) the divisible divorce concept enunciated in Estin v. Estin (whereby the Nevada judgment was effectual also in New York insofar as it terminated the marital relationship but that for lack of in personam jurisdiction it was ineffectual to cancel the alimony provision of a prior New York judgment of separation) applies equally to prior summary procedure support orders of the Domestic Relations Court of the City of New York. The first of those arguments disregards the controlling ruling in Lynn v. Lynn ( 302 N.Y. 193), in which Judge FULD'S opinion, unanimously concurred in, states (p. 201): "And even if we were to accept the view of the Appellate Division that the Nevada court, in decreeing the divorce, failed to give appropriate effect to the adjudication made in the New York action, the courts of this state would still be required to accord full faith and credit to the Nevada decree. Nevada's asserted denial of full faith does not justify or permit retaliation by any other state.
The foregoing conclusion is not overcome by the earnest arguments in petitioner's counsel's brief to the effect that (1) the Nevada decree is not entitled to any recognition in New York because it was "obtained by fraud" inasmuch as its asserted ground of extreme mental cruelty on the part of petitioner conflicts with Justice POLIER'S findings in the prior orders of this court that she was entitled to support on a means basis; and (2) the divisible divorce concept enunciated in Estin v. Estin (whereby the Nevada judgment was effectual also in New York insofar as it terminated the marital relationship but that for lack of in personam jurisdiction it was ineffectual to cancel the alimony provision of a prior New York judgment of separation) applies equally to prior summary procedure support orders of the Domestic Relations Court of the City of New York. The first of those arguments disregards the controlling ruling in Lynn v. Lynn (302 N.Y. 193), in which Judge FULD'S opinion, unanimously concurred in, states (p. 201): "And even if we were to accept the view of the Appellate Division that the Nevada court, in decreeing the divorce, failed to give appropriate effect to the adjudication made in the New York action, the courts of this state would still be required to accord full faith and credit to the Nevada decree. Nevada's asserted denial of full faith does not justify or permit retaliation by any other state.
Federated Dept. Stores, Inc. v. Twin City Fir Ins. Co., 807 N.Y.S. 2d 62, 67 (1st Dep't 2006). See Rose v. Spa Realty Assocs., 42 N.Y. 2d 338, 344 (1977) ("Once a party to a written agreement has induced another's significant and substantial reliance upon an oral modification, [that] party may be estopped from invoking the statute to bar proof of [the] oral modification."); Metro. Life Ins. Co. v. Childs Co., 230 N.Y. 285, 292-93 (1921) ("An estoppel rests upon the word or deed of one party upon which another rightfully relies, and, so relying, changes his position to his injury.") (emphasis added), accord, Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y. 2d 175, 184 (1982), Triple Cities Constr. Co. v. Md. Cas. Co., 4 N.Y. 2d 443, 448 (1958), Lynn v. Lynn, 302 N.Y. 193, 205 (1951). See Rose, 42 N.Y. 2d at 344 ("Once a party to a written agreement has induced another's significant and substantial reliance upon an oral modification, [that] party may be estopped from invoking the statute to bar proof of [the] oral modification.") (emphasis added); Isaacs Bus. Ventures, Inc. v. Thompson, 636 N.Y.S. 2d 906, 908 (3d Dep't 1996) ("Likewise, defendants failed to adduce sufficient credible evidence showing that they substantially relied upon the oral modification to their detriment.
The first is that if she appeared in the Florida action, she would risk modification of the support award granted in New York. See Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, cert. denied, 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640 (1951). The second reason advanced by plaintiff is that she was afraid that if she went to Florida her husband would utilize his alleged "vast underworld connections," concerning the existence of which plaintiff is totally convinced, to cause her physical harm.
The Appellate Division's refusal to apply the last-in-time rule to the Belgian judgment was error. ( Lynn v Lynn, 302 NY 193; Estin v Estin, 296 NY 308; Donald v J. J. White Lbr. Co., 68 F2d 441; Americana Fabrics, Inc. v L L Textiles, Inc., 754 F2d 1524; Ambatielos v Foundation Co., 203 Misc 470; Chenu v Board of Trustees of Police Pension Fund of City of N.Y., 12 AD2d 422, 11 NY2d 688; Perkins v De Witt, 197 Misc 369, 279 App Div 903; Matter of Hunter, 4 NY3d 260; Joshua A. Becker Assoc, v State of New York, 79 AD2d 599; Lazier v Westcott, 26 NY 146.) II. The last-in-time rule applies whether or not the forum of the second judgment grants comity to foreign judgments.
The question of "divisible divorce", discussed in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, and foreshadowed in Esenwein v. Commonwealth, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608, is not presented. In Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, it was held by the New York Court of Appeals that a divorce decree in Nevada, following a personal appearance, even where the court failed to grant alimony or the wife to seek it, nullified the alimony provisions of a prior judgment of separation obtained by her in New York. It was recognized that the question was one of New York law. In Rodda v. Rodda, 185 Or. 140, 200 P.2d 616, 202 P.2d 638, it was held that even without a personal appearance an absolute divorce obtained by publication had the same effect under Oregon law, although under the Estin case Oregon was not required to give it that effect by the full faith and credit clause of the federal constitution.
This concept of divisible divorce, insofar as it permits a court of the wife's domiciliary state to enter an order for her support after the marital relationship has been dissolved by a decree of a foreign court, is applicable only in cases where the foreign court lacked jurisdiction of the person of the wife. Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748 (1951); Restatement 2d, Conflict of Laws ยง 77, comment e (1971). The United States Supreme Court, in cases such as Vanderbilt, in upholding the right of the state of the wife's domicile to make provision for her support following a valid foreign divorce, has always spoken in terms of ex parte foreign divorces.