Chrestman v. Chrestman
| Decision Date | 27 August 1969 |
| Citation | 303 N.Y.S.2d 733,60 Misc.2d 780 |
| Parties | Jillian CHRESTMAN, Plaintiff, v. Parks CHRESTMAN, Defendant. |
| Court | New York Supreme Court |
Jay Julien, New York City (Philip J. Kassel, New York City, of counsel), for plaintiff.
Ritzer & Chwasky, New York City (Phillips, Nizer, Banjamin, Krim & Ballon, by Theodore H. Friedman, New York City, of counsel), for defendant.
AURELIO, Special Referee.
In this action the court is called upon to decide whether or not it has the power to amend a Mexican bilateral decree of divorce obtained by the husband, by inserting therein a provision for the payment of alimony in a case wherein such decree does not provide for the payment of any alimony.
The parties were married on June 23, 1954, and there is no issue of the marriage. On or about May 12, 1961 defendant went to the City of Juarez, Mexico, and obtained a bilateral Mexican decree of divorce from this plaintiff. The decree does not provide for the payment of any alimony.
The complaint herein was served upon defendant on November 21, 1966, and issue was joined by service of defendant's answer on January 4, 1967. Pursuant to notice dated April 10, 1969, and served upon defendant, plaintiff seeks to amend the complaint to allege, among other things:
Defendant vigorously opposed the amendment upon the trial. The court reserved decision and took the testimony over defendant's objection.
The foregoing application to amend the complaint is now granted, and defendant is deemed to have interposed an answer denying plaintiff's right to such relief.
The complaint served upon defendant alleges three causes of action:
(1) a decree of separation on the grounds of abandonment and nonsupport;
(2) failure to support and maintain the plaintiff; and
(3) a declaratory judgment that the Mexican decree of divorce obtained by defendant is invalid and of no force and effect in law.
During the trial plaintiff withdrew the first, second and third causes of action, and moved to amend the complaint and requested that the Mexican decree of divorce be amended to provide for alimony (T.T. p. 23).
Section 466(c) of the Family Court Act (1965 amendment) provides:
'* * * if a court of competent jurisdiction not of the state of New York shall enter an order or decree granting alimony or support in any such action, the family court may * * *
(ii) entertain an application to modify the order or decree granting alimony on the ground that there has been a subsequent change of circumstances and that modification is required.'
It should be noted the Court of Appeals has held that the Supreme Court has concurrent jurisdiction with the Family Court under said Section 466(c). See Matter of Seitz v. Drogheo, 21 N.Y.2d 181, 287 N.Y.S.2d 29, 234 N.E.2d 909.
Plaintiff claims that there has been such a change of circumstances of the parties since the Mexican decree was...
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Infanto v. Infanto
...Law. This court fully concurs with the learned opinion rendered by Special Referee Thomas A. Aurelio in Chrestman v. Chrestman, 60 Misc.2d 780, 782, 303 N.Y.S.2d 733, 735 wherein he concluded, 'I am of the opinion that the legislative intent in enacting the said subdivision (c) of section 4......
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Chesta v. Chesta
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