Christensen v. Christensen

• Decision Date: 05 June 1963
• Parties: Eleanor C. CHRISTENSEN, Plaintiff, v. Lauritz R. CHRISTENSEN and Ann Bloom, also known as ann Christensen, Defendants. & Trial Term, New York County, Part XX
• Court: New York Supreme Court

Page 797

240 N.Y.S.2d 797

39 Misc.2d 370

Eleanor C. CHRISTENSEN, Plaintiff, v. Lauritz R. CHRISTENSEN and Ann Bloom, also known as ann Christensen, Defendants.

Supreme Court, Special & Trial Term, New York County, Part XX.

June 5, 1963.

Morris Ploscowe, New York City, for plaintiff.

Kaye, Scholer, Fierman, Hays & Handler, New York City, by Milton R. Wessel and Herbert Schreiber, New York City, of counsel, for defendants.

ABRAHAM N. GELLER, Justice.

Plaintiff seeks, in her first cause of action, a judgment declaring the nullity of defendant husband's Nevada divorce and of his subsequent marriage to the codefendant and, in her second cause of action, a judgment of separation on the grounds of abandonment, nonsupport and adultery.

The undisputed facts establish--and defendants concede--that the husband did not acquire a bona fide domicile sufficient to support the Nevada judgment od divorce obtained without an appearance therein by the wife. Both the divorce and the subsequent remarriage must therefore be held to be invalid.

Defendants, however, plead a defense of equitable estoppel by laches to the effect that, assuming the invalidity of the Nevada divorce plaintiff's alleged acquiescence and unreasonable delay debar her from contesting the divorce and the subsequent remarriage. The governing rule of law on this question of estoppel was summed up in Weiner v. Weiner, 13 A.D.2d 937, 216 N.Y.S.2d 788:

'The gist of the decisions is that a spouse who by acts indicates acquiescence in the divorce and so induces the other spouse to act upon the assumed validity of the decree cannot be heard to contest it.' (emphasis supplied)

It is clear that mere inaction or delay after knowledge of one's rights cannot constitute laches. The doctrine of equitable estoppel may be invoked only where the conduct of a party has induced a change of position or resulted in a substantial prejudice to the adverse party.

Here, shortly after the divorce, defendants were married in Connecticut and thereupon returned to live in this state. Their child was conceived several months later. They purportedly relied on plaintiff's assumed modern or tolerant views on marital relationships and her failure to institute promptly proceedings contesting the divorce, although she had received notice thereof at the time of its entry. They also assert that the action, which was brought by her against her husband the following year for alleged excessive withdrawals from their joint bank account, constituted a recognition and affirmation of the divorce in that she alleged in the complaint therein 'upon information and belief the defendant herein obtained a divorce from the plaintiff herein in the State of Nevada and has since remarried.' Whatever the purpose or effect of such allegation in that action, defendants cannot claim reliance thereon, since no material act or change of position on their part took place thereafter. When plaintiff commenced this action about two and a half years after the divorce, it was within the applicable period of limitations and not barred by laches.

Cases cited by defendants on the subject of laches are clearly distinguishable. For example, in Finan v. Finan, Sup., 47 N.Y.S.2d 429, the wife had appeared in the out-of-state divorce action and waited three years before claiming that jurisdiction had been obtained through duress, coercion and fraud; the court's statement in that context that delay of over three years in attacking the foreign decree 'seems to be unreasonable as a matter of law'...