Brown v. Brown

• Decision Date: 10 February 1969
• Citation: 297 N.Y.S.2d 385,58 Misc.2d 1020
• Parties: In the Matter of a Proceeding Under the Uniform Support of Dependents Law Pauline BROWN, Petitioner, v. Harry F. BROWN, Jr., Respondent.
• Court: New York Family Court

Page 385

297 N.Y.S.2d 385

58 Misc.2d 1020

In the Matter of a Proceeding Under the Uniform Support of Dependents Law Pauline BROWN, Petitioner, v. Harry F. BROWN, Jr., Respondent.

Family Court, Ulster County.

Feb. 10, 1969.

Pauline Brown, in pro. per.

Robert MacKinnon, Kingston, for respondent.

HUGH R. ELWYN, Judge.

In this proceeding under the Uniform Support of Dependents Law originated in the Family Court of Suffolk County the petitioner seeks support for herself and her 13 year old son. The respondent concedes his liability for the support of his son, but denies any responsibility for the support of the petitioner upon the ground that their marriage has been terminated by divorce (Domestic Relations Law § 32, subd. 1; Matter of Fleischer v. Fleischer, 24 A.D.2d 667, 261 N.Y.S.2d 165; Ross v. Ross, 206 Misc. 1073, 136 N.Y.S.2d 23; Matter of Martin v. Martin, 58 Misc.2d 459, 296 N.Y.S.2d 453).

The petitioner and the respondent, her second husband, were married at Kingston, New York on March 20, 1954. Five years later on March 6, 1959 the petitioner obtained an Alabama divorce from the respondent and on August 16, 1959 in the state of Oklahoma she married her third husband, Joseph Schiavone. On March 9, 1967 the petitioner's marriage to Schiavone was annulled by a judgment of the New York Supreme Court of Suffolk County upon the ground that at the time of her marriage to Schiavone she had a spouse who was then living and from whom she was not validly divorced. The judgment of annulment declared the legitimacy of the child born of the marriage (Domestic Relations Law § 145, subd. 3), but made no provision for alimony for the wife (Domestic Relations Law § 236).

In a memorandum decision holding the petitioner's Alabama divorce from Brown to be invalid the Supreme Court of Suffolk County wrote: 'There is no evidence that plaintiff ever in fact resided in or even visited Alabama prior to her arrival there on March 5, 1959. Her contrary statement and the admission by her former husband were clearly false and constituted a fraud on the Alabama Court. In these circumstances that Court never acquired jurisdiction over the parties and collateral attack on the decree is permissible (Magowan v. Magowan, 45 Misc.2d 972, 258 N.Y.S.2d 516, aff'd 24 A.D.2d 840, 263 N.Y.S.2d 947; see Matter of Goodman, 25 A.D.2d 646, 268 N.Y.S.2d 545).'

Ironically, Magowan v. Magowan, supra, relied upon by the Supreme Court as authority for permitting the plaintiff's collateral attack upon his wife's Alabama divorce from Brown was later reversed by the Court of Appeals (19 N.Y.2d 296, 279 N.Y.S.2d 513, 226 N.E.2d 304, April 6, 1967) and Matter of Goodman, supra, although not appealed, is of doubtful authority in the light of the Court of Appeals reversal of Magowan and other cases to the same effect (See Weisner v. Weisner, 17 N.Y.2d 799, 271 N.Y.S.2d 252, 218 N.E.2d 300; Levess v. Levess, 21 N.Y.2d 758, 288 N.Y.S.2d 233, 235 N.E.2d 219; Virgil v. Virgil, 55 Misc.2d 64, 284 N.Y.S.2d 568; Hahn v. Falce, 56 Misc.2d 427, 289 N.Y.S.2d 100).

However, no appeal was ever taken from the judgment of the Supreme Court annulling the petitioner's marriage to her third husband, so that by judgment of the Supreme Court of this state she is no longer the wife of Schiavone. Moreover, since the court made her no award of alimony, she has no redress against him. Does this judgment also have the effect, as she contends, of reviving her status as the wife of Brown, the respondent in this proceeding, so as to make him liable for her support?

Although it is true, as the petitioner points out, that in order for the court to annul her marriage to Schiavone it had to find that her marriage to Brown was still in full force and effect (Domestic Relations Law § 140(a)), it does not follow that the annulment of her void marriage to Schiavone has revived Brown's obligation to support her (Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, 48 A.L.R.2d 312, overruling Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501; Denberg v. Frischman, 17 N.Y.2d 778, 270 N.Y.S.2d 627, 217 N.E.2d 675).

The reasons for reaching this seemingly anomolous result (the exact opposite of that which the court reached in Sleicher) are stated by the Court of Appeals in Gaines v. Jacobsen, supra (P. 224, 124 N.E.2d p. 294) to be these. 'Today, through the operation of section 1140--a (now § 236 Domestic Relations Law), the wife can receive support from the husband of the annulled marriage, where 'justice requires,'...