DiRusso v. DiRusso

• Decision Date: 24 January 1968
• Docket Number: V--A
• Citation: 287 N.Y.S.2d 171,55 Misc.2d 839
• Parties: Jean DiRUSSO, Plaintiff, v. Fortunato DiRUSSO and Regina Anna DiRusso, Defendants
• Court: New York Supreme Court

Page 171

287 N.Y.S.2d 171

55 Misc.2d 839

Jean DiRUSSO, Plaintiff, v. Fortunato DiRUSSO and Regina Anna DiRusso, Defendants.

Supreme Court, Special Term, Nassau County, Part V--A.

Jan. 24, 1968.

[55 Misc.2d 840] Stephen A. Humsjo, Freeport, for plaintiff.

Sydney S. Shebar, Freeport, for defendants.

MEMORANDUM

BERNARD S. MEYER, Justice.

One of the anomalies in the law of status produced by a peripatetic population in a federal system is the divisible divorce: when a forum with jurisdiction over one of the marital partners grants an ex parte divorce to that partner, its judgment must be given effect everywhere as severing the personal, though not the economic, aspects of the marriage. To that aberration there is now added, as an unidentical twin, the mutilated marriage: when a forum with jurisdiction over neither of the marital partners grants a divorce on the personal appearance of the husband and the wife's appearance by attorney and thereafter, at the instance of the wife, sets the divorce decree aside as fraudulently obtained, and in the period between the first and second judgments, the husband marries a woman who was not involved in and is not shown to have knowledge of the fraud, the second judgment must be given retroactive effect so as to reinstate the economic, but not the personal, aspects of the first marriage.

This action for a declaratory judgment is the fifth litigation between plaintiff-wife and defendant-husband. Plaintiff prays for judgment declaring that she is the lawful wife of defendant-husband, that he and defendant Regina Anna Furrer are not husband and wife, that he be required to support plaintiff and that he and Regina Anna Furrer provide counsel fees and disbursements for prosecution of this action. Defendants by their answer join in the request for a declaratory judgment and counterclaim for a declaration that the Alabama decree of August 25, 1965 vacating the February 25, 1960 decree divorcing plaintiff and defendant-husband is not entitled to recognition, that plaintiff is not the lawful wife of defendant-husband, and that he and Regina Anna Furrer are legally married. When the case came on for trial, certain facts were stipulated and exhibits marked and it was agreed that the court files of the earlier Nassau litigations were before the court. From the stipulation, exhibits and records of the earlier Nassau litigations, the court finds the facts set forth in the following three paragraphs.

Caught in a motel raid on February 13, 1960, plaintiff on February 22, 1960, acting with advice of counsel, signed a separation agreement, a power of attorney and an answer in an Alabama divorce proceeding. On February 25, 1960 on the personal appearance of defendant, he, as plaintiff in a divorce action brought in Winston County, Alabama, was granted a decree of divorce from the present plaintiff, the decree ratifying and confirming the February 22, 1960 separation agreement. On June 25, 1960, defendant husband and Regina Anna Furrer were married. On November 2, 1960, plaintiff began an action in Supreme Court, Nassau County (Index No. 13130/60) against defendant-husband alone alleging that the motel raid had been staged through a conspiracy between defendant and the man with whom she had been found in the raid and that her consent to the separation agreement and the Alabama divorce papers had been procured by fraud and duress, and praying that the separation agreement be set aside, the Alabama divorce be declared void and that she be granted a separation. On March 23, 1961, when that action came on for trial, plaintiff entered into a stipulation of record, and confirmed in answer to questions by the Court and by her counsel that she understood and agreed to it, whereby she discontinued the action, confirmed the validity of the Alabama divorce and modified the separation agreement so that she became the sole owner of the marital residence, and as modified confirmed the separation agreement. Thereafter, defendant turned over to plaintiff a deed to his interest in the residence.

In June 1962, plaintiff began a second action in Nassau County, Supreme Court (Index No. 991/63) alleging that the separation agreement of February 22, 1960 was obtained by fraud and duress and was void as in violation of Domestic Relations Law § 51, that the stipulation settling the earlier action was void for the same reason, that the Alabama divorce was likewise invalid, and praying that she be granted a separation, custody and support. The matter was tried and resulted in a decision stating that 'the Court cannot find that the plaintiff, who was represented by counsel, did not voluntarily and knowingly appear in the Alabama action' and dismissing the separation action on the ground that the Alabama decree was conclusive 'since the plaintiff appeared in the Alabama divorce action and had been given the opportunity to litigate the question of defendant's domicile.' That portion of the separation agreement waiving support for plaintiff was, however, held void under D.R.L. § 51, but there being no proof of defendant's income or assets, plaintiff's demand for alimony was dismissed without prejudice. The judgment entered January 27, 1964 adjudged 'that the action for separation based upon the invalidity of the Alabama Divorce Decree is dismissed.'

In January 1965, plaintiff, as complainant in an original bill in the nature of a bill of review filed in Winston County, Alabama, sought a decree vacating the divorce decree of February 25, 1960 and restoring her to the marital status dissolved by it, alleging that neither she nor defendant had ever been domiciled in or a resident of Alabama, and that she signed the papers in the 1960 divorce action under the threat of physical abuse and of injury to her reputation by exposing photographs framed or set up by defendant in which plaintiff would appear to be in an adulterous situation. Summons by registered mail together with a copy of the bill of review in the 1965 Alabama action and the proceedings in the 1960 Alabama divorce action were served on defendant in New York, and he admits receipt of them. Defendant did not appear in the 1965 Alabama action. The bill of review before the Alabama court did not reveal to that court the plaintiff's 1961 stipulation, nor did it disclose the January 27, 1964 judgment of this court or the decision on which it was based. A decree dated May 25, 1965 was entered by the Alabama court vacating the 1960 decree of divorce and restoring plaintiff to the marital status dissolved by that decree. On September 29, 1965, plaintiff began the present action. Only the bill of review and the Alabama court's decree are before this court, but the parties have stipulated that the Winston County judge wrote no opinion and that the present action may be determined without a transcript of the evidence presented to the Alabama court.

Defendants argue that the second Alabama decree is not entitled to recognition in New York because (1) defendant-husband did not appear before the Alabama court and it, therefore, had no jurisdiction over him, (2) the decree was procured by plaintiff's fraud in withholding from the Alabama court information concerning her stipulation in the 1961 New York action and the 1964 New York judgment, and (3) the decree is inconsistent with the 1964 New York judgment.

The contention that the Alabama court was without jurisdiction overlooks the fact that it was defendant who instituted the 1960 Alabama divorce action. Under Alabama law, a bill in the nature of a bill of review may, though it need not necessarily, be filed in the court which rendered the decree that it is sought to have vacated, service by registered mail outside the state is permitted, and jurisdiction continues in the Alabama courts 'to get rid of judgments and decrees which fugitives have procured from them by fraud,' Hooke v. Hooke, 247 Ala. 450, 454, 25 So.2d 33, 36. Clearly, there is no constitutional objection to continuing jurisdiction for such a purpose for 'The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence. It is the price which the state may exact as the condition of opening its courts to the plaintiff,' Adam v. Saenger, 303 U.S. 59, 67--68, 58 S.Ct. 454, 458, 82 L.Ed. 649; see Restatement, Second, Conflict of Laws, (Proposed Official Draft) § 34. Of course, there must be adequate notice to the former plaintiff of the subsequent proceeding, Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635; Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 454, 52 S.Ct. 238, 76 L.Ed. 389; Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867, but defendant husband admits having received the summons, bill of review and attachments served in the 1965 proceeding, and since he defaulted in that proceeding there was no constitutional requirement that he receive notice of subsequent steps, so long as they were within the framework of the bill of review served upon him, John v. John, 16 N.Y.2d 675, 261 N.Y.S.2d 299, 209 N.E.2d 289, rev'd on the dissenting opinion below, 22 A.D.2d 804, 254 N.Y.S.2d 828, remittitur amended 16 N.Y.2d 825, 263 N.Y.S.2d 166, 210 N.E.2d 457, app. dism'd for want of jurisdiction and, treated as an application for certiorari, cert. denied 382 U.S. 371, 86 S.Ct. 550, 15 L.Ed.2d 425.

Though the Alabama court had jurisdiction to render the 1965 judgment, its judgment is subject to collateral attack in New York for fraud, if under the law of Alabama it would be subject to attack for fraud, for 'a judgment has no constitutional claim to a more conclusive or final effect in the State of the forum than it has in the State where rendered,' People of State of New York ex rel. Halvey v....