Vanderbilt v. Vanderbilt

• Decision Date: 31 May 1956
• Citation: 153 N.Y.S.2d 1,135 N.E.2d 553,1 N.Y.2d 342
• Parties: , 135 N.E.2d 553 Patricia W. VANDERBILT, Respondent-Appellant, v. Cornelius VANDERBILT, Jr., Appellant-Respondent. Thomas F. McCoy, Receiver and Sequestrator-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 1

153 N.Y.S.2d 1

1 N.Y.2d 342, 135 N.E.2d 553

Patricia W. VANDERBILT, Respondent-Appellant, v. Cornelius VANDERBILT, Jr., Appellant-Respondent.

Thomas F. McCoy, Receiver and Sequestrator-Respondent.

Court of Appeals of New York.

May 31, 1956.

Certiorari Granted Oct, 8, 1956.

Sol A. Rosenblatt and Charles Roden, New York City, for appellant-respondent.

Monroe J. Winsten and Charles L. Raskin, New York City, for respondent-appellant.

DESMOND, Judge.

The principal question is as to the validity and applicability of this provision of section 1170-b of our Civil Practice Act, enacted in 1953: 'In an action for divorce, separation or annulment, or for a declaration of nullity of a void marriage, where the court refuses to grant such relief by reason of a finding by the court that a divorce, annulment or judgment declaring the marriage a nullity had previously been granted to the husband in an action in which jurisdiction over the person of the wife was not obtained, the court may, nevertheless, render in the same action such judgment as justice may require for the maintenance of the wife.'

In 1948 plaintiff, then domiciled in Nevada, and defendant, then domiciled in California, married in Connecticut and together established in California a domicile which continued (despite much travel in this country and Europe) till they separated in September, 1952. After the separation the wife immediately went to New York City. In October, 1952 she sued in New York for a separation but that suit was dismissed because of the one-year residence requirement of subdivision 3 of section 1165-a of the Civil Practice Act. After a visit to California, plaintiff returned to New York in February, 1953, and has since resided in this State. In March, 1953 defendant husband brought in Nevada a suit for divorce, process in which was served on the wife in New York. The wife did not appear or answer in that suit which in June, 1953 produced a divorce decree in favor of the husband. In April, 1954 plaintiff, effecting service through publication of the summons and sequestration of his assets (see Civ.Prac.Act, § 1171-a) in New York, commenced this action in the Supreme Court, New York County, praying for a separation on the ground of cruelty and abandonment, and for an award of alimony (there were no children of the marriage). Defendant, appearing specially, moved to vacate the sequestration and to dismiss this action on the ground that the marriage no longer existed, and that there was in New York State no matrimonial domicile or status, or domicile of plaintiff. That motion of defendant was heard and dismissed before trial but defendant availed himself of the permission then given him to plead in his answer the alleged lack of jurisdiction over his person and over the subject matter of the cause. His answer in this suit, besides denying all the complaint's allegations of cruelty and abandonment, contained also a purported complete defense in which he called the court's attention to the Nevada divorce judgment and asserted that 'full faith and credit' therefor was, under the Federal Constitution, a bar to the maintenance of this action. We agree with defendant that he has not, by his subsequent activities in the case, waived the contentions he is still making as to lack of personal jurisdiction (see Civ.Prac.Act, § 237-a, subd. 3, par. (c); subd. 4). We construe the judgment below not as one in personam against defendant but as fixing the amount of the alimony and directing its payment out of the sequestered property.

When this action came to trial, plaintiff went forward with testimony as to the alleged acts of cruelty and abandonment. Defendant did not take the stand and called no witnesses to deny that testimony. Plaintiff attempted also to establish factually that defendant's previously obtained Nevada divorce was invalid because, she urged, defendant did not have a bona fide domicile in that State. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. We can dispose of that latter issue right now by holding that there was sufficient evidence to justify the finding made by both courts below in this cause that defendant did have a good faith domicile in Nevada for a sufficient period before his divorce decree was handed down. That proof included a showing that defendant had lived and voted and owned property in Nevada for many years before his marriage to plaintiff, that plaintiff and defendant lived there together in the early months of their marriage, that defendant returned there some months before the divorce and that defendant has continuously maintained a residence in Nevada since the divorce. The various contradictory statements shown to have been made by defendant on this subject did no more than set up a question of fact as to the good faith of the Nevada predivorce domicile, an issue of fact which has been conclusively settled in favor of defendant by the courts below.

After both sides had put in proof, defendant renewed his motion, previously made at the end of plaintiff's case, to dismiss the complaint on the grounds of lack of jurisdiction and of the alleged binding effect of the prior divorce. The trial court, holding that the Nevada divorce was binding in New York to the extent of dissolving the marriage, dismissed so much of the complaint as asked for a judgment of separation but (on the authority of Civ.Prac.Act, § 1170-b, supra) continued to entertain so much of the action as prayed for support and maintenance. Defendant objected to this on the jurisdictional grounds already described, also on the grounds that the Nevada judgment had terminated the marriage and all its obligations, that section 1170-b is unconstitutionally vague and lacking in standards as to what 'justice may require', that section 1170-b if so applied would violate not only New York common law but the full faith and credit requirement of the Federal Constitution, and that plaintiff had not been a resident of New York State for the one-year period required by subdivision 3 of section 1165-a of the Civil Practice Act, nor for any other period. The court again denied defendant's dismissal motion.

The trial court then took the proofs offered by plaintiff as to amounts suitable and necessary for her support. The trial came to an end after a renewal and another denial of defendant's dismissal motions. Later, the court awarded plaintiff $250 per week for support plus an award of $3,500 for counsel fees and expenses (her counsel had previously been awarded and paid $2,500 for such fees and expenses). The support money was directed to be paid from June 8, 1954, the date of the commencement of this action. Defendant's brief argues against the amount of this award and as to its retroactivity, but these determinations in those respects were, on this record well within the discretion of the trial court, affirmed by the Appellate Division. The same answer goes to so much of plaintiff's cross appeal as disputes the adequacy of the support allowance.

We come, then, to the remaining, and principal, questions of law:

1. Does this case come within the language and intent of section 1170-b of the Civil Practice Act?

2. If the answer to the first question is 'yes', is section 1170-b, so applied, invalid as violative of the Federal Constitution, or otherwise?

There should be no doubt as to the applicability hereto of section 1170-b. This is certainly an action for separation, where the court refused 'to grant such relief by reason of a finding by the court that a divorce * * * had previously been granted to the husband in an action in which jurisdiction over the person of the wife was not obtained'. Plaintiff, having resided in this State for the required one-year period, had standing to bring such a suit and jurisdiction was effected by the sequestration of defendant's New York assets. There is nothing in the statute's language to suggest that it was intended to apply only to marriages where the parties had lived together in this State as their matrimonial domicile. Presumably, the Legislature was moved to action by the clear and cogent reasoning of a report made to the Legislature by the Law Revision Commission (1953 Report of N.Y.Law Rev.Comm., pp. 463-480). The report (p. 467) cited Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113, affirmed 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, as holding that 'A wife who has obtained in New York a separation order with maintenance provisions may enforce these provisions against her husband even though he may subsequently have obtained an ex parte divorce entitled to recognition under the Full Faith and Credit Clause of the Constitution of the United States.' But, the commission pointed out (as had one of the Supreme Court opinions in Estin) that there was no procedure available in New York State whereby similar protection of her rights to support could be had by a wife unless she, prior to the foreign divorce, had obtained an alimony order in a separation suit, as had Mrs. Estin. 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 § 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, 100 N.E. 408; Weintraub v. Weintraub, 302 N.Y. 104, 96 N.E.2d 724; Civ.Prac.Act, § 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, 97 N.E.2d 748, 28 A.L.R.2d 1335, certiorari denied 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640, the Law Revision Commission and the Legislature set out to remove the procedural bar against a wife obtaining in the New York courts protection of those rights to support which remained to her after and...