Camp v. Camp

• Decision Date: 26 June 1959
• Citation: 189 N.Y.S.2d 561,21 Misc.2d 908
• Parties: Dorothy Dadura CAMP, Plaintiff, v. Nickolas D. CAMP, Defendant.
• Court: New York Supreme Court

Page 561

189 N.Y.S.2d 561

21 Misc.2d 908

Dorothy Dadura CAMP, Plaintiff, v. Nickolas D. CAMP, Defendant.

Supreme Court, Trial Term, Nassau County, Part III.

June 26, 1959.

Moses M. Falk, New York City, for plaintiff.

Lipton & Silverstein, Jamaica, for defendant, Ira L. Hyams, Jamaica, of counsel.

BERNARD S. MEYER, Justice.

This action was commenced by plaintiff wife as an action for separation. On her application for alimony and counsel fees, it appeared from the affidavit of defendant that a divorce had been granted him in the State of Florida. The Special Term Justice, therefore, referred the motion to the trial court. Plaintiff thereafter was granted permission to amend her complaint to add a second cause of action for a judgment declaring the invalidity of the Florida divorce, and, on appeal, the order allowing the amendment was affirmed (8 A.D.2d 724, 187 N.Y.S.2d 989).

At the opening of the trial, defendant withdrew his fifth defense and also moved to dismiss the cause of action for a declaratory judgment as unnecessary, relying on Garvin v. Garvin, 306 N.Y. 118, 116 N.E.2d 73. The Garvin case establishes that a judgment of separation is conclusive that a valid marriage exists and makes unnecessary a declaratory judgment. Hersh v. Hersh, 5 A.D.2d 874, 171 N.Y.S.2d 450, affirmed w. o. 5 N.Y.2d 878, 182 N.Y.S.2d 827, establishes that the obtaining of an ex parte foreign divorce is not cruelty, and where the parties have previously been living apart is not abandonment warranting a separation. The mere existence of the foreign divorce, therefore, constitutes no assurance that a separation will be granted even though the foreign divorce is held invalid. It follows that a plaintiff must be permitted to plead and adduce proof on both causes of action, even though if separation is decreed, a judgment declaring the invalidity of the divorce will be denied, Hollister v. Hollister, 288 N.Y. 528, 41 N.E.2d 931; Goshin v. Goshin, 279 App.Div. 668, 108 N.Y.S.2d 18. On this basis the motion was denied as premature, but since I find after trial that the Florida decree is invalid, and plaintiff is entitled to judgment of separation, I sustain defendant's sixth separate defense to the declaratory judgment cause of action, and, applying the rule of the Hollister case, dismiss the second cause of action.

The parties were married on November 5, 1953. Defendant was then 69 years of age and plaintiff 55. Both had been previously married. Defendant is a builder and has been responsible for the construction of a large number of homes in and around the Syosset area. The parties first lived in New Hyde Park, then moved to Split Rock Road in Syosset and then to 26 Lucille Drive in Syosset. During each of the years to their marriage they went to Miami for periods from six weeks to three months and during 1956, the defendant purchased a lot and built a house on Keystone Drive in Miami. While defendant in that year obtained an estimate for moving his furniture to Florida, it is undisputed that the parties never moved into the house permanently; that defendant continued to work as a builder in the Long Island area through 1957 and registered to vote in New York in the 1957 elections. On January 4, 1958, the parties, together with the defendant's son by his first marriage, who was also his partner in the building business, drove to Miami, arriving there on January 8. The evidence indicates that before they left, it was understood that defendant intended to build some houses in Miami, but does not substantiate an intention at that time to make Florida his permanent residence. As good portion of defendant's clothes were left at the Syosset home. No furnishings other than a few linens were taken to Florida. No effort was made to cut off the telephone or other utilities at the house. It is not disputed that upon arrival in Florida the parties obtained the bare minimum of furniture (that is, 3 costs, a table and a few chairs) in order to permit them and the defendant's son to stay at the Keystone Drive house until it was sold, it having been agreed before they arrived that the house would be sold. It is also not disputed that on February 5 defendant filed his declaration of domicile and citizenship under the Florida law. That declaration was dated January 30, and stated that since the first day of January 1958, defendant had been a bona fide resident of the State of Florida. The evidence further shows that on the 26th day of February 1958, his car, which had been previously registered in New York, was registered with the Florida Motor Vehicle Commissioner. His testimony was that this was done because when he filed his declaration of domicile and applied for a homestead exemption with respect to the Keystone Drive property, he was told that he could not obtain a homestead exemption unless his car was registered in Florida. This and the use of the false January 1st date in the declaration suggest, and I find, that defendant's purpose in filing the declaration of domicile and changing the registration of his automobile was to obtain the homestead exemption rather than to effect a bona fide charge of domicile.

In March, the Keystone Drive house was sold and plaintiff and defendant moved to an apartment which was admittedly a temporary place of abode. Defendant had by that time purchased land and begun the erection of two model homes. Defendant testified that at this time the parties were looking for a small house for themselves. On April 19, plaintiff, in company with defendant's son returned from Florida to New York. From defendant's testimony, it is clear that he expected to return to New York some time in June and to spend some time fishing in New Hampshire thereafter. The evidence also indicates that defendant expected that when plaintiff returned to New York she would attempt to sell the Lucille Drive house in Syosset and there is also evidence that the house had been listed with a real estate broker by defendant's son as early as February 15, 1958. On May 17, the parties conversed by telephone. During the course of this conversation, so defendant claims, plaintiff told him that if he were planning to come up to New York for Memorial Day, he had better not, that 'he would get sick if he did.'

On June 4, 1958, defendant's verified complaint in the Florida divorce proceeding, in which the summons was also dated June 4, was mailed to plaintiff from Florida. Defendant testified that he had not consulted an attorney with respect to divorce until a few days before the complaint was drawn. Apparently the May 17 conversation caused him to decide upon divorce, and crystallized his intention to make Florida his permanent home. It is undisputed, however, that he has remained in Florida and until he returned for the purpose of the trial of this case had not returned to New York; that he erected a total of nine houses there, of which five have been sold and four remain unsold; that he has a bank account there, but also has continued to have financial interests and accounts in New York. Since those interests and accounts have been sequestered under an order of this court, their continuance would have no bearing on the question of defendant's domicile.

On the above facts, defendant urges that he was domiciled in Florida from and after January 8, 1958. While as hereafter appears, it is not necessary for me to determine the exact moment when defendant became domiciled in Florida, were I required to do so, I would find that date to be June 1, 1958, at which time he appears to have had a clear intention to transfer not only his business activity but his personal residence to Florida. Whether his domicile was acquired when he arrived in Florida on January 8 or, as I find, when his intention crystallized on June 1, he was domiciled in Florida when the divorce complaint was filed.

Defendant then argues that since he was domiciled in Florida when the complaint was filed, the Florida court had jurisdiction to grant a valid divorce, notwithstanding the fact that defendant had then resided in Florida less than the six months required by Florida Annotated Statutes, Sec. 65.02, and that court having granted a divorce, this court cannot go behind the Florida decree and inquire into the question of residence. He cites as authority for his argument the cases collected in 2 A.L.R.2d 291, and Restatement, Conflict of Laws, Sec. 110, Com. b, which reads, in part, as follows 'The requirement that the residence must have continued for a certain number of months or years is not jurisdictional, in the sense in which that word is used in the Restatement of this Subject; and the finding of the court on length of residence is conclusive in the courts of another state, provided the jurisdictional requirement of domicile at the time suit is brought is satisfied.'

See also Goodrich, Conflict of Laws, Sec. 129, p. 404 and Snow, Recognition of Sister State Divorce, 25 Brooklyn L.R. 278, 288.

The short answer is that, as will be hereafter demonstrated, Florida law permits a defendant in an ex parte proceeding to have a decree set aside at any time where the record does not show by corroborated proof residence for the required period; that the Full Faith and Credit Clause (Art. IV, Sec. 1) of the United States Constitution and 28 U.S.C. Sec. 1738, enacted in pursuance thereof, permit collateral attack in the forum where such attack would be permitted in the rendering state (Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146; Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552; People ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; Adam v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649; Berkman v. Ann Lewis Shops, 2 Cir., 246 F.2d 44; Bieck v. Radmin, 14 Misc.2d 416, 178 N.Y.S.2d 983, affirmed w. o. 7 A.D.2d 712, 181 N.Y.S.2d 160; Richards v. Richards, 2 Misc.2d 596, 153 N.Y.S.2d 979; Phillips v. Phillips, 15 Misc.2d 884,...