This is an appeal from an order of the Family Court which dismissed appellant’s petition seeking enforcement and modification of the provisions of a Mexican divorce decree.
We do not in any way pass upon the merits of the claims and allegations contained in the petition, but find only that the Family Court has jurisdiction in this proceeding, pursuant to subdivision (c) of section 466 of the Family Court Act, which provides as follows:
“ if a court of competent jurisdiction not of the state of New York shall enter am order or decree granting alimony or support in any such action [for divorce], the family court may:
“ (i) entertain an application to enforce the order or decree granting alimony, or
“ (ii) entertain an application to modify the order or decree granting alimony on the ground that there has been a subsequent change of circumstances and that modification is required.” (Emphasis added.)
The parties were married in December, 1968 and they entered into a separation agreement on October 6, 1970, which, in part, obligated respondent to pay to his wife $1,250 per month for a period of three years from the date thereof. Three days after the date on the separation agreement respondent obtained a bilateral Mexican divorce decree incorporating, but not merging, the terms of the separation agreement. Respondent paid to petitioner $1,250 a month during the next three years, following which petitioner brought this proceeding in the Family Court. Neither the invalidity of the support provision in the separation agreement (General Obligations Law, § 5-311; Kyff v. Kyff, 286 N. Y. 71), nor the expiration of the three-year period during which respondent made the required payments, detracts from the fact that a Mexican court of competent jurisdiction did “ enter an order or decree granting alimony or support ”. The majority takes the view that we need hot look any further in order to sustain jurisdiction.
Ludwig v. Ludwig (39 A D 2d 456) and Matter of Calwil v. Calwil (41 A D 2d 529) relied upon in the dissent, are factually distinguishable and do not require a result different from that reached by the majority herein. In Ludwig v. Ludwig (supra), the Florida court which had issued the decree of divorce, upon motion, modified its own decree by eliminating therefrom all provisions for alimony. Under those circumstances this court (p. 458) /correctly observed that: “ Accordingly there no longer is in existence a Florida divorce decree granting alimony and *112there is nothing upon which the statutory provision [§ 466, subd. (c)] may operate. The statute as a condition precedent to its application requires the existence of a valid decree of divorce * * * and that such decree contain a provision granting alimony”.
In the case at bar, as pointed out above, a valid decree of divorce, containing an alimony provision, is still in existence. Similarly, in Matter of Calwil v. Calwil (supra), the Mexican divorce decree before the court incorporated the terms of a separation agreement which made ‘ ‘ no provision * * * for support of the wife ”. (Matter of Galwil v. Galwil, 34 A D 2d 535, 536.) Accordingly, this court once again had before it a foreign decree which did not contain a provision granting alimony or support, as required by subdivision (c) of section 466.
The dissent correctly points out that the validity of the provision in the separation agreement, which terminates support after three years, ‘ ‘ does not affect its validity in the foreign decree. * * * The mere fact that the court adopted a provision that would be void in an agreement does not void the decree, nor can the decree be read as if the provision were not made ”. This is exactly the point the majority is making.
The Mexican decree must be read in conjunction with the provision in the separation agreement providing support for petitioner. This being so, the conditions precedent to the jurisdiction of the Family Court have been satisfied.
The order of the Family Court should be reversed, on the law, without costs or disbursements, and the matter remanded to the Family Court.