Summary
In Timmins v Timmins (50 A.D.2d 720) the court in upholding a judgment after trial awarding the plaintiff husband a conversion divorce called attention, in measuring whether he had substantially performed, to the fact that the defendant wife had failed to honor her agreement to sell certain real property and divide the proceeds with her husband.
Summary of this case from Fairley v. FairleyOpinion
November 6, 1975
Appeal from the Onondaga Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Mahoney and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: In this appeal from a judgment granting plaintiff husband a divorce pursuant to subdivision (6) of section 170 Dom. Rel. of the Domestic Relations Law, the question presented is whether there was substantial compliance with the terms of the separation agreement between the parties. The fact that the husband, on occasion, fell in arrears on payments due under the separation agreement does not mean that he failed to substantially comply with its terms (Rubin v Rubin, 35 A.D.2d 460). Nor does the fact that he sought court approval of a reduction in payments required during periods of financial difficulty. It should be noted that the terms of the separation agreement required defendant wife to effect sale of certain jointly owned real property and to divide the proceeds but that she failed to do so. The record shows that his marriage is no longer viable. It is in the best interests of society that the parties to a dead marriage be able to extricate themselves from a perpetual state of marital limbo (Gleason v Gleason, 26 N.Y.2d 28).