Bennett v. Bennett
| Decision Date | 23 July 1984 |
| Citation | 103 A.D.2d 816,478 N.Y.S.2d 47 |
| Parties | Maureen BENNETT, Appellant, v. Paul A. BENNETT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Cunningham & Lee, New York City (Colin F. Dorney, Williston Park, of counsel), for appellant.
Sheldon Klienfield, Garden City (Harris M. Grossman, of counsel), for respondent.
Before MOLLEN, P.J., and TITONE, MANGANO and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, dated June 1, 1982, as, in effect, granted that part of the defendant husband's motion which was to dismiss the plaintiff's requests for an award of maintenance of $150 per week and for an award of counsel fees.
Order reversed insofar as appealed from, with costs, that portion of the complaint as seeks a judgment awarding maintenance and counsel fees reinstated, and matter remitted to the Supreme Court, Nassau County, for further proceedings.
Maureen Bennett, the plaintiff wife, and Paul A. Bennett, the defendant husband, were married in New York in September, 1956. They lived together "as man and wife" until October, 1976, when the defendant allegedly abandoned the plaintiff. In 1979, the defendant became a resident of the State of Florida, and continues to reside and work there.
By summons and petition for dissolution of marriage, the defendant commenced an action for divorce against his wife in the Circuit Court of the Fifteenth Judicial Circuit of Florida. The plaintiff was served with the summons and petition in New York on July 18, 1980. On or about August 25, 1980, a default judgment was entered against the plaintiff "for failure to serve a pleading at the time required by law". On September 3, 1980, the Circuit Court ordered that "bonds of marriage between * * * PAUL A. BENNETT, and * * * MAUREEN BENNETT, are dissolved because the marriage is irretrievably broken".
By service of a summons, dated January 15, 1982, and verified complaint, the plaintiff instituted this matrimonial action, alleging that in, or about, October, 1976, she was abandoned by the defendant husband. The plaintiff sought judgment (1) dissolving the marriage between the parties; (2) awarding her maintenance in the amount of $150 per week; and (3) granting to her attorney an award of counsel fees for his service in connection with the action.
By notice of motion, dated April 26, 1982, the defendant moved for an order dismissing the complaint, pursuant to CPLR 3211 (subd. ), on the grounds that "on the 3rd day of September, 1980 the State of Florida granted a final and valid divorce to the defendant and against the plaintiff and that plaintiff's present action for a divorce has been adjudicated by a Court of competent jurisdiction, having jurisdiction of all parties and that this matter is res judicata".
The plaintiff opposed the motion alleging, inter alia, that she was unaware that a divorce decree had been entered in the State of Florida, notwithstanding that she was served in the Florida action and had defaulted. The plaintiff argued that
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