Kalmus v. Kalmus

DRAPEAU, J. Natalie M. Kalmus filed her complaint for support and maintenance, dissolution of partnership and for accounting and appointment of receiver in the superior court. Dr. Herbert T. Kalmus and a number of other defendants were named. The complaint alleges that the plaintiff and Dr. Kalmus (who will hereafter be referred to as the defendant) were married in Massachusetts July 23, 1902, remarried in New York City in February, 1923, and separated June 6, 1944; that the defendant is worth three million dollars or more, [75]and is principal stockholder in a number of prosperous technicolor corporations; and that plaintiff is entitled to an interest-in defendant’s earnings and property, by way of community, dower, partnership, or otherwise. The complaint avers grievous mental cruelty, desertion, and adultery. It also avers that in addition to her alleged marital rights in defendant’s property, plaintiff and defendant have been partners in all of defendant’s business enterprises from the date of the marriage. Plaintiff prays for support and maintenance, counsel fees and court costs, and for an accounting of the partnership alleged.

Defendant’s answer admits the marriage in Massachusetts; denies the marriage in New York; alleges a decree nisi of divorce in Massachusetts December 22, 1921, which became final six months thereafter; and that defendant and plaintiff have not been husband and wife since the decree. The decree provided for payments of $625 per month by defendant to plaintiff as alimony, which payments have always been made. The answer also alleges a compromise agreement, set out in haec verba, releasing defendant from all asserted claims and demands of plaintiff, and dated February 19, 1945. All of the other material allegations of the complaint are denied.

Defendant also cross-complained for declaratory relief and injunction, setting up the divorce decree and the compromise agreement as a bar to any and all claims by plaintiff against him; and alleging harassment by her of him throughout the years. The prayer is for declaratory judgment accordingly, and for injunction.

Plaintiff answered the cross-complaint, averring that after the decree nisi she and Dr. Kalmus resumed marital relations and lived together as husband and wife, in her belief that the decree had not become final and was not binding, which relationship continued until 1944; denying the allegations of the cross-complaint; and pleading in bar a pending equity action in Massachusetts to set aside the decree nisi. This action, however, was commenced after the complaint was filed in this proceeding.