Cahall, In re
| Decision Date | 06 July 1955 |
| Citation | 143 N.Y.S.2d 511,208 Misc. 287 |
| Parties | In the Matter of Robert B. CAHALL, Respondent. Children's Court, Schenectady County |
| Court | New York Children's Court |
Max Herskowitz, Schenectady, for petitioner.
Gerald T. Hennessy, Schenectady, for respondent.
Dorothy and Robert Cahall were married on August 17, 1946 and have three children, Claudia, Deborah and Holly of the ages, five years, three years and six months respectively. These parties are in Court on the petition of Mrs. Cahall in which she seeks an order requiring respondent to furnish support for her and the children.
The proceeding is authorized by Article III-A of the Children's Court Act under which the Court is authorized 'to compel the support of a * * * wife, if pregnant, or if the support of her minor child * * * is involved.' Children's Court Act, § 30, subd. 1.
In the present case three minor children are involved, the responsibility for whose support the respondent does not deny. He does deny legal responsibility for the support of the petitioner, contending that the marriage was dissolved by decree of the Courts of the State of Nevada. This and the question of what is 'a fair and reasonable sum according to his means' are the issues involved.
The facts relative to the alleged divorce are undisputed. The respondent, an engineer, came to work for the General Electric Company at Schenectady in March, 1948, and with the exception of about a year, July, 1948 to July, 1949 when he worked at the Burlington and Pittsfield Plants of that Company, has worked continuously since that time at its Schenectady Plant. He and his family lived in Schenectady during this period, the parties owning their own home as tenants by the entirety. The respondent and his wife separated on September 24, 1954 at which time he moved to Rexford where he now resides. He testified that he obtained a leave of absence from the General Electric Company because of illness which leave was to begin March 11, 1955 and terminate June 13, 1955. During this leave the respondent went to Reno, Nevada and there procured a decree purporting to dissolve his marriage to the petitioner. The decree received in evidence shows that the action was brought in the Second Judicial Court of the State of Nevada, County of Washoe. It recites among other things that 'The defendant failed to answer or otherwise appear and plead within the time allowed by law, and her default for such failure was duly and regularly entered.' And 'That for more than six weeks immediately prior to the commencement of this action, the plaintiff was and is now an actual and bona fide resident of and actually and corporeally residing and being and domiciled in the County of Washoe, State of Nevada.' It then decreed 'That plaintiff be and hereby is granted an absolute divorce from the defendant upon the ground of extreme cruelty, purely mental in character.' The decree was dated and filed on May 19, 1955.
The respondent further testified that he returned to Schenectady on May 22, 1955 and to his job with the General Electric Company at Schenectady on the following day. He presently works there and lives either at Rexford or Schenectady.
The respondent contends the Nevada decree is entitled to 'full faith and credit' under the Federal Constitution and that this Court is without jurisdiction to order support for the petitioner. To sustain an order of support including the petitioner, a finding that the relationship of husband and wife does exist is necessary. To discharge the powers vested in it by law, authority to determine the validity of a foreign decree necessarily follows. Morris v. Morris, 160 Misc. 59, 289 N.Y.S. 636.
The effect to be given to the full faith and credit clause of the Constitution is a federal matter determinable by the United States Supreme Court whose decisions on this aspect of the matter are final. The question of whether a foreign court has jurisdiction to render a valid judgment is a question for the State Court and this question must be resolved before the full faith and credit clause may enter into consideration. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. It is an exclusive power of the Courts of this State. Gould v. Gould, 235 N.Y. 14, 138 N.E. 490.
If the respondent was not validly domiciled in Nevada, then the Court of that State had no jurisdiction to render a valid decree and such decree granted is not entitled to full faith and credit. Williams v. State of North Carolina, supra.
'[S]imply because the Nevada court found that it had power to award a divorce decree cannot, we have seen, foreclose re-examination by another State.' Williams v. State of North Carolina, supra, 325 U.S. 234, 65 S.Ct. 1097.
Was the respondent a domiciliary of Nevada? True he was physically present in that State for a limited period beginning sometime after March 11th, 1955, and ending prior to May 22nd, 1955, a period of not more than ten weeks.
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