Cohen v. Randall

• Decision Date: 20 July 1943
• Docket Number: No. 238.,238.
• Citation: 137 F.2d 441
• Parties: COHEN v. RANDALL.
• Court: U.S. Court of Appeals — Second Circuit

137 F.2d 441 (1943)

COHEN v. RANDALL.

No. 238.

Circuit Court of Appeals, Second Circuit.

July 20, 1943.

Gustave B. Garfield, of New York City (Davidson & Mann, Harvey T. Mann, and Maurice P. Davidson, all of New York City, on the brief), for appellant.

Robert D. Steefel, of New York City (Stroock & Stroock, of New York City, on the brief), for appellee.

Before SWAN, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This appeal reasserts the sufficiency of plaintiff's complaint, which was dismissed below on motion before answer for failure to state a claim against defendant upon which relief could be granted. Federal jurisdiction rests on diversity of citizenship, the plaintiff being a resident of California. She was formerly the wife of Nathan D. Cohen, of the City of New York, who died testate in 1940. On June 17, 1940, letters testamentary were issued by the Surrogate's Court of New York County to Lewis Randall as executor of Cohen's estate. This action against the executor was commenced in the district court in December, 1941.

The complaint sets out with unnecessary prolixity a story of domestic infelicity which terminated in a separation agreement followed by a Nevada divorce obtained by the plaintiff. She was married to Nathan D. Cohen in October, 1933. He was a resident of New York and remained such until his death. Five months after the marriage, charging desertion, she brought an action against him for a separation and for separate maintenance. A reconciliation was effected and this action was discontinued, but a few months later he again deserted her and she brought a second action of the same character in which she obtained an order for alimony pendente lite of $50 per week. While this action and two others¹ were pending, the parties made a separation agreement dated April 16, 1935. This is incorporated into the complaint. It provided that the husband and wife should continue to live apart, that her three pending actions should be discontinued without costs, that each released all rights in the other's estate, including election, intestate share, and dower, and that he should pay her $32,500 in full satisfaction of all claims for support and of a share in his estate. Of this sum she received $17,000 in cash without limitation as to its use. The remaining $15,500 she was required to deposit with a bank under an agreement providing that it should be paid to her in quarterly installments of $250, beginning July 15, 1935, but any remaining balance should be paid to her forthwith if the husband should die or if either husband or wife should obtain a decree of divorce issued by a court of any state of the United States.² In order to get possession of this sum of $15,500, the wife proceeded to Nevada and obtained a decree of divorce in the courts of that state.³ Both the agreement and the divorce would preclude her from exercising the right she would have had as her husband's widow to elect under section 18 of the Decedent Estate Law of New York, Consol. Laws, c. 13, to take one-third of his estate.

In addition to the foregoing facts the complaint alleged that the husband induced the wife to enter into their separation agreement by means of false and fraudulent representations as to the property he owned, thereby causing her to believe that he was worth $85,000 less than was in fact the case; that she did not learn of the falsity of his representations until after his death; and that had she known the facts when she signed the separation agreement, she would not have accepted its terms or obtained the Nevada divorce. The theory of the plaintiff's cause of action is that the husband's fraud caused her to get her divorce whereby she lost her right to elect to take a share of his estate upon his death and thus sustained the loss for which she asks damages. Although the allegations that his misrepresentations caused her to get the divorce are not entirely definite and unambiguous, we shall assume that the complaint adequately asserts this essential fact. The complaint also alleged that the Nevada divorce is invalid because "the purported residence established by plaintiff" "was purely for the purpose of obtaining a decree of divorce pursuant to the scheme and device of Nathan D. Cohen evidenced by" the separation agreement. It demands $100,000 damages.

Much of the plaintiff's argument has been addressed to establishing the proposition that the separation agreement was null and void because in derogation of section 51 of the Domestic Relations Law of New York, Consol. Laws, c. 14.⁴ Since the parties were already living separate and apart it is by no means clear, laying aside the question of fraud in its inception, that the agreement was not valid and enforceable. See In re Rhinelander's Estate, 290 N.Y. 31, 47 N.E.2d 681. This, however, is an issue which may be passed without decision. Indeed, it is not perceived why her case would not be at least as strong if it were founded on fraud inducing her to make an otherwise valid agreement. But even if the separation agreement were to be held void, or if, otherwise valid, it were to be rescinded on the ground of fraud, plaintiff would still have to face her Nevada divorce. Section 18(3) of the Decedent Estate Law, after providing that the right of election shall not be available to a spouse against whom or in whose favor a divorce or separation decree recognized as valid by the law of the state has been rendered, continues: "Nor shall such right of election be available to a spouse who has procured without the state of New York a final decree or judgment dissolving the marriage with the testator where such a decree or judgment is not recognized as valid by the law of this state."⁵ Defendant's substantial point is that in any event the divorce decree standing unvacated prevents her election of an interest in her husband's estate, and that hence his alleged fraud, as matters stand, has caused her no legal damage. The issue, however, must be broadened to include the question whether the divorce decree can be here attacked, since, the plaintiff having stated her facts extensively and the defendant having appeared, the court must now give her whatever relief the facts justify without respect to her formal demand. Federal Rules of Civil Procedure, rule 54(c), 28 U.S.C.A. following section 723c. In any event, we are brought to the fundamental question how far one situated as the plaintiff asserts herself to be would be permitted to challenge the Nevada decree in the courts of New York.

Under the New York precedents which must control us, that question cannot be considered entirely free from doubt. In the circumstances plaintiff may not have been wise in suing in the federal courts, which are now inhibited in this class of cases from doing anything beyond merely reflecting state pronouncements, with eyes closed to policy arguments or changing trends. But she has made her choice of forum, and we are therefore compelled to interpret the New York precedents as best we may. Initially we may say that we do not think it adequate to dispose of this case as merely a forbidden collateral attack upon a foreign divorce decree. For first, New York does allow a wide attack in her courts on such foreign decrees even by persons who have secured them; and second, plaintiff attempts to bring herself within the rules — supplementary to those against collateral attack on judgments — of equitable relief for and estoppel against fraud "extrinsic" to the matter adjudicated in the judgment itself, rules which are applicable with respect to judgments in general, United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; 31 Am.Jur. 230-232, and decrees of divorce in particular. Restatement, Judgments, § 114, comment b; 27 C.J.S., Divorce, § 169, pp. 810-812, § 337, pp. 1304-1306; and cases hereinafter cited. The provision quoted above from the Decedent Estate Law § 18(3) cannot be considered as finally settling the matter, for that provision, enacted in 1929, in this respect simply adopts the law of Starbuck v. Starbuck, 173 N.Y. 503, 66 N.E. 193, 93 Am.St.Rep. 631, and other cases denying relief (in that case dower) to a woman who had herself procured a foreign divorce.⁶ In fact, it is a fairly general rule, as the cases collected in 3 A.L.R. 535 show, that a party obtaining a judgment cannot collaterally attack it. That is, notwithstanding this general rule, of which the statute is a reflection, the two propositions above stated still are true and hence require our attention.

First, it now seems finally settled in New York that either party to a foreign divorce decree may attack it as void in an action to settle matrimonial status. Querze v. Querze, 290 N.Y. 13, 47 N.E.2d 423, 424.⁷ The court there distinguished other cases, such as Starbuck v. Starbuck, supra, where the moving party was later held estopped to attack the divorce, as cases of "private claim or demand arising out of the marriage," as distinguished from "a full adjudication" of "the existing marital status." It is argued here that this must necessarily be considered an action for a private claim, not one for such a full adjudication as is meant in the Querze case. But as we have seen, the mere form of pleading is not decisive and the only compelling reason must be the death of the husband. The general rule appears to be, however, that relief may still be accorded notwithstanding the death of a spouse, Dennis v. Harris, 179 Iowa 121, 153 N.W. 343, and cases collected in 57 L.R.A. 583, 44 L.R.A.,N.S., 505, 125 Am. St.Rep. 230, 27 C.J.S., Divorce, §§ 171, 172, pp. 815, 819, and there are explicit dicta in several lower New York cases that relief by action in equity is still available. Morey v. Morey, 164 Misc. 527, 299 N.Y.S. 161, 163; Groh v. Groh, 35 Misc. 354, 71 N.Y.S. 985; and Watson v. Watson, 1 Hun, N.Y., 267.⁸ In the absence of a definitive statement from the Court of Appeals,⁹ the question cannot be regarded...