Benedict v. Benedict

• Decision Date: 05 August 1952
• Citation: 203 Misc. 286
• Parties: "Dora Benedict", Petitioner,<BR>v.<BR>"Maurice Benedict", Respondent.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[*]</A></SUP>
• Court: New York Family Court

203 Misc. 286

"Dora Benedict", Petitioner,

v."Maurice Benedict", Respondent.^[*]

August 5, 1952.

Edwin R. Wolff for petitioner.

Daniel D. Bier for respondent.

SICHER, J.

The following facts are undisputed: The parties were duly married at New York City on August 12, 1934, and became the parents of two children, "Cynthia" (born June 8, 1936) and "Daniel" (born December 11, 1940); they lived as a family unit in New York City continuously until at least September, 1948, and during the latter years of that period in the Bronx County apartment which petitioner and the two children still occupy; in any event respondent is chargeable with the support of those children according to his means and station in life; and such duty of support may be admeasured and enforced by this court regardless of the validity or invalidity of a constructive service default decree of divorce which respondent caused to be entered in his favor against petitioner on January 10, 1951, in the Second Judicial District Court of the State of Nevada, Washoe County.

Because those children are residing in New York City and respondent is now domiciled, or in any event has been "found" and served personally, in New York City and has appeared generally by attorney in this proceeding, concededly this court has the requisite jurisdiction to enter an order for their support (N. Y. City Dom. Rel. Ct. Act, § 103, subd. 1; Helman v. Helman, 190 Misc. 991; Schacht v. Schacht, 58 N. Y. S. 2d 54, 187 Misc. 461; cf. Langerman v. Langerman, 303 N.Y. 465). On that phase the only issue for determination is the "fair and reasonable sum" which respondent may be required to contribute (N. Y. City Dom. Rel. Ct. Act, § 92, subds. [1]-[4]; § 101, subd. 1). However, despite well-established controlling legal principles, that controverted issue as to amount is complicated by emotional factors unfortunately not uncommon in this kind of widespread difficulty. "A very real problem which affects support payments is that of remarriage by the man and establishment of a second family. The father then becomes so involved financially that he takes care of the family making immediate demands and neglects his prior responsibilities." (Quoted from the Annual Report for 1951, Cuyahoga County Juvenile Court, Cleveland, Ohio, p. 17.)

And that aspect becomes still further complicated when, as in the case at bar, the first wife questions the legality of the husband's remarriage and asserts that his "second wife" is as a matter of law his paramour and, as such, without any legal right to support.

According to a June 10, 1952, Probation Bureau Chronological Record entry, at the first intake interview with petitioner she indicated an intention to apply for support for the children only. However, the petition as filed and subsequent steps call for inclusion also of the mother, personally, on the asserted ground that she alone is still respondent's legal wife.

It was proved that both petitioner and respondent are professional hairdressers and had worked together until the last three or four years before their separation; and that during such three or four years petitioner had remained at home merely as housewife but in May, 1950, resumed gainful occupation, her earnings as a beauty parlor receptionist being now a gross of $60 a week and a net of $54.30.

Beginning about September, 1948, respondent started to remain at X Town, New Jersey (except for week ends) and conducted there a certain manufacturing or sales business, which, however, did not prosper and was liquidated in the autumn of 1950.

In July, 1950, he went to Nevada to procure a divorce in that State of easy requirements, and immediately after expiration of the minimum statutory period instituted, on October 23, 1950, in the Second Judicial District of the State of Nevada, Washoe County, an action for divorce "upon the ground of extreme cruelty, entirely mental in nature." However, he interrupted his Nevada sojourn to return to New Jersey in November, 1950, in connection with the liquidation of the afore-mentioned business but went back to Nevada to procure entry, on January 10, 1951, of a default judgment of divorce in his favor against petitioner; that judgment expressly reciting that the defendant had not appeared and had been served with the summons only in New York City pursuant to an order of publication but that she should have the custody of the two children and defendant pay to her for their support the sum of $25 per week.

Such award figure is not binding on the children, who are entitled to support in whatever amount this court may adjudge from time to time to be a "fair and reasonable sum" (see "Stone v. Stone", 44 N. Y. S. 2d 558; Schacht v. Schacht, 58 N. Y. S. 2d 54, 187 Misc. 461, supra; Helman v. Helman, 190 Misc. 991, supra; Matter of Karchmer v. Kane, 275 App. Div. 715; Scrima v. Scrima, 265 App. Div. 483; Mallina v. Mallina, 167 Misc. 343, and Langerman v. Langerman, 303 N.Y. 465, supra). But the $25 figure, having been suggested by respondent, constitutes at least an admission by him of his minimum duty of support (cf. "Johnston" v. "Johnston", 177 Misc. 618).

While in the State of New Jersey during November, 1950, respondent was personally served there with process of the Superior Court of New Jersey, Chancery Division, Somerset County, instituting an action in which the plaintiff (petitioner herein) prayed for a judgment that the defendant (respondent herein) be ordered "to desist and refrain from proceeding further in any respect with said action instituted by him against the plaintiff in said Nevada Court and from entering and taking any order, judgment or decree therein, excepting an order, judgment or decree dismissing said suit".

In that New Jersey action a judgment in favor of the plaintiff (petitioner herein) was entered against the defendant (respondent herein) on April 4, 1951. It recites that the defendant was personally served within the State of New Jersey and appeared there on January 10, 1951, and that there were hearings on January 15, 1951, and on February 19, 1951; and it contains the following further provisions:

And the Court having read and considered the pleadings and having taken the proofs in open Court in this cause, from all of which it now appears to the satisfaction of the Court that the plaintiff and defendant were lawfully married on August 2, 1934, as alleged in said Complaint, and that the plaintiff and defendant resided in the City of New York, State of New York, until September 1948, when the defendant became a resident of * * * Somerset County, New Jersey and has continued to be a resident thereof since that time;

And it further appearing that the defendant herein was granted a Decree of Absolute Divorce by the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, on the 10th day of January 1951, upon the petition of the defendant herein, alleging extreme cruelty, entirely mental in nature, and bona fide legal residence in said State of Nevada;

And it further appearing that the plaintiff herein was not served with process in said Nevada suit; that plaintiff did not participate therein in any way and that there was no litigation in said suit on the question of defendant's domicile in the State of New Jersey;

And it further appearing that said decree of divorce was procured by fraud and imposition of defendant herein upon the Second Judicial District of the State of Nevada, in and for the County of Washoe, in that jurisdiction to determine said cause in the State of Nevada was founded and predicated upon bona fide legal residence of defendant therein when as a fact from the evidence adduced herein defendant never did establish a bona fide legal residence in the State of Nevada;

And the Court being satisfied in the premises that the demand of plaintiff should be granted, in that said decree of divorce of the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, was procured, and was intended to be procured, by the fraud and imposition of the defendant here upon said Second Judicial District Court of the State of Nevada, in and for the County of Washoe;

It is, on this fourth day of April 1951, ORDERED and ADJUDGED by the Superior Court of New Jersey, Chancery Division, that the said decree of absolute divorce granted by the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, dated the Tenth day of January 1951, be and the same is hereby declared to be null, void and of no force or effect in this State. (Emphasis supplied.)

An order or judgment merely restraining a spouse from prosecuting an action for divorce in a sister-State court might not restrain that court but would operate solely on the defendant (see McKendry v. McKendry, 280 App. Div. 440). However, it should be observed, although the aforesaid New Jersey action was initially a suit for an injunction against respondent's proceeding with a then pending Nevada divorce action, it developed, after appearance by the defendant husband and supplemental pleadings, into a controversy over, and an adjudication of, the invalidity of the Nevada judgment which had been entered by him during and in disregard of such New Jersey suit. Those particular facts therefore differentiate the case at bar from Sivakoff v. Sivakoff (280 App. Div. 106), a constructive service default action.

Petitioner asserts that the above-quoted finding of the Superior Court of New Jersey, Chancery Division, Somerset County — concededly a court of general jurisdiction — is entitled to full faith and credit in the instant proceeding and constitutes a conclusive adjudication, binding on the parties and this court, that the aforesaid Nevada decree of divorce lacks the jurisdictional fundament of a bona fide Nevada domicile and that it is therefore not the kind of sister-State judgment contemplated by subdivision 1 of section 137 of the New York City...