Code of Civil Procedure Section 1771 - Interpretation

In Wilson v. Hinman, 182 NY 408, 75 N.E. 236 (1905), the Court of Appeals, more than century ago, held that the parties could enter into an agreement that could bind the husband's estate. But, the court in Wilson v. Hinman carefully added, "an agreement of that character would in no way contravene public policy, and the performance of it would, doubtless, be enforceable by the courts." Id. at 414. In short, at the dawn of the 10th century, the Court of Appeals drew a line in the marital sand: a couple could extend maintenance beyond the "well-accepted proposition" of death, but not to "contravene public policy." Id. at 414. In the wake of Wilson v. Hinman, the Court of Appeals waited to be asked whether some public policy impacted the obligation to pay maintenance. It did not have to wait long or look far. Fourteen years later, in Schley v. Andrews, 225 NY 110, 121 N.E. 812 (1919), the court highlighted Section 1771 of the Code of Civil Procedure as meeting the public policy test: If the defendant had obtained a divorce in this state, and the judgment had awarded her $200 per month alimony, and she had again married, as she has here done, and the plaintiff had made a motion to be relieved from such payment, the court would have had to grant the motion. The statute so provides (Code Civil Procedure, sec. 1771), and while this statute has no direct bearing on the question being considered, it indicates by its enactment a legislative intent that as a matter of public policy a wife who has a husband with whom she is living should be supported by him and not by one from whom she has been divorced. Id. at 114. During the next 13 years, lower courts agreed. In Dumproff v. Dumproff, 138 Misc. 298, 244 N.Y.S. 597 (Sup. Ct. New York Cty. 1930), the court reaffirmed the underlying public policy inherent in the statute: Upon her remarriage I hold that instanti the obligation to compel provision for her maintenance is shifted from the shoulders of her former spouse to him who assumes all the privileges, and, therefore, is ordinately a full measure of the duties incident to the marital state. This is as it should be. For otherwise, in a possible case ad interim the time of such remarriage and the application by the former husband for a modification of the final decree, the alimony paid by such former husband would not only lighten the duty of the second spouse in respect to the support of his wife, but might even be reflected, if the wife were a mere conduit, in the enhanced financial circumstances of such second husband. There could be no justice in such proposition. (Id. at 299.) In 1932, the Court of Appeals re-affirmed the public policy incorporated into Section 1159 of the Civil Practice Act when applied to a separation agreement incorporated into a judgment of divorce, and struck down the decretal paragraph in the judgment requiring maintenance after remarriage. Severance v. Severance, 235 App. Div. 799, 255 N.Y.S. 998 (2nd Dept. 1932), aff'd 260 NY 432, 183 N.E. 909 (1933). The court stated that Section 1159 was "mandatory" and a cutoff of maintenance was required upon " the conceded fact that the plaintiff had remarried" even if the obligation was set forth in an agreement between the husband and wife. Four years later the court revisited the question, this time under the revised Section 1179 of the Civil Practice Act and the precursor of Section 248 of the Domestic Relations Law. The Court of Appeals, in Kirkbride v. VanNote, 275 NY 244, 9 N.E.2d 852 (1937), quoted Schley v. Andrews, 225 NY 110, 114, 121 N.E. 812 and specifically directed: The provision of the Civil Practice Act is mandatory. Where a former wife has remarried and an application is made for modification of the judgment with respect to the direction of payment of money for the support of the former wife, the court "must modify," and cannot in its discretion refuse to do so . . . The law recognizes the unfairness of requiring a husband to pay alimony for a period during which his former wife is married to another. In view of the mandatory character of this provision and the public policy behind it, there can be no doubt that the right to apply for modification is not personal to the husband, and the modification is not limited to the time subsequent to the application. It applies nunc pro tunc as of the time of the remarriage to all unpaid alimony. To hold otherwise would enable a woman to conceal her remarriage and thereby obtain alimony from her former husband while she is living with a new spouse. Kirkbride v. VanNote, 275 NY at 248. By 1948, the issue was considered resolved. In Goodman v. Goodman, 82 NYS 2d 318 (Sup. Ct. New York Cty. 1948), the court held that discontinuing maintenance upon remarriage applied to all forms of marital resolution, including separation decrees: But, the public policy underlying the statute is that a wife who has a husband with whom she is living should be supported by him and not by a man from whom she has been divorced and that policy applies with as much force where divorce and remarriage have followed a decree of separation as where remarriage has followed a decree of divorce or annulment. Id at 321. Succeeding courts re-affirmed the principle. In Reichel v. Sollazzo, 38 Misc 2d 217, 238 N.Y.S.2d 140 (Sup. Ct. Nassau Cty. 1963), the court held that the existence of the maintenance obligation in a separation agreement does not change the rule. See also Grossman v. Merke-Grossman, 248 AD2d 670, 670 N.Y.S.2d 580 (2nd Dept. 1998) (remarriage terminates the maintenance obligation); Jacobs v. Patterson, 143 AD2d 397, 532 N.Y.S.2d 429 (2nd Dept. 1988) (alimony terminates upon remarriage of the spouse); Heinecke v. Heinecke, 121 AD2d 363, 502 N.Y.S.2d 796 (2nd Dept. 1986) (upon remarriage, obligation to pay support ended, citing DRL 248); Canfield v. Canfield, 55 AD2d 694, 389 N.Y.S.2d 52 (3rd Dept. 1976) (incorporated separation agreement required payment of maintenance, but upon remarriage, decretal provision, enforcing that agreement annulled, citing DRL 248).