Ernst v. Ernst

• Decision Date: 04 November 1963
• Citation: 40 Misc.2d 934,243 N.Y.S.2d 917
• Parties: Rose ERNST v. Robert ERNST and Helen Nardi.
• Court: New York Supreme Court

Page 917

243 N.Y.S.2d 917

40 Misc.2d 934

Rose ERNST v. Robert ERNST and Helen Nardi.

Supreme Court, Special Term, Kings County, Part V.

Nov. 4, 1963.

Onie & Fluke, New York City (Harry M. Onie, New York City, of counsel), for plaintiff, for the motion.

Levy & Charwat, Merrick (Mark S. Charwat, Merrick, of counsel), for defendants, opposed.

MURRAY T. FEIDEN, Justice.

This is a motion by the plaintiff for temporary alimony and counsel fees.

The complaint contains two causes of action. The first cause of action is for a declaratory judgment to annul an Arkansas divorce decree obtained by the defendant Robert Ernst on the basis of constructive notice, the wife not having appeared or been served personally, and to declare the nullity of the allegedly void subsequent marriage between the defendant and the co-defendant, Helen Nardi, on December 5, 1951. The Arkansas action was commenced November 3, 1951 and the decree obtained December 4, 1961. The decree is directly attacked on the ground that the husband failed to comply with the three-month domiciliary requirement of Arkansas. The first cause of action was brought under section 1169-a of the Civil Practice Act as it existed prior to September 1, 1963. The second cause of action is for a separation on the grounds of abandonment, cruelty and failure to support and maintain the plaintiff and was brought under former section 1169 of the Civil Practice Act. Plaintiff's attorneys indicated in their briefs that plaintiff was not proceeding under section 1170-b of that Act.

The defendants' answer, in addition to the usual general denials, contains affirmative defenses to the effect that the divorce decree of Arkansas is valid; that defendant agreed in writing to support plaintiff for a ten-year period which ended in November, 1961; that in any event, the Statute of Limitations bars both causes of action.

The motion for temporary alimony and counsel fees was returnable and argued shortly before the CPLR and the new sections of the Domestic Relations Law went into effect on September 1, 1963 but most of the briefs and papers were received after such date, the last one being served on October 21, 1963. Sections 1169, 1169-a and 1170-b of the Civil Practice Act have been reworded, consolidated and transferred to sections 236, 237 and 240 of the Domestic Relations Law, also effective September 1, 1963, resulting in major changes with respect to applications for alimony, temporary and permanent, and counsel fees.

Section 10003 of the CPLR, and presumably the procedural and remedial provisions of those sections of the Civil Practice Act which were transferred to the Domestic Relations Law, are intended to apply to proceedings still pending and undecided even where the action was commenced and the application for relief was made prior to September 1, 1963. The court finds that it is feasible and will not work an injustice to decide the application herein under the new sections of the Domestic Relations Law inasmuch as procedural and remedial matters are involved. This conclusion was reached in Perryman Burns Coal Company v. Mandelbaum, Sup., 243 N.Y.S.2d 71 and this was the law under section 1569 of the Civil Practice Act, which is the counterpart, substantially unchanged, of CPLR 10003 (See, First Construction Company of Brooklyn v. Rapid Transit Subway Construction Company, 211 App.Div. 184, 206 N.Y.S. 822; Matter of Demarse v. Bruckman, 164 Misc. 331, 333, 298 N.Y.S. 736, 739).

It has long been the law of this State that in the absence of words of exclusion, a statute which relates to the form of procedure is applicable to pending as well as subsequently commenced proceedings (Matter of Davis' Estate, 149 N.Y. 539, 545, 44 N.E. 185, 186-187). In McKinney's CPLR, Vol. 7B, at pages 442 and 443, the note under Legislative Studies and Reports makes this comment about CPLR 10003:

'It expresses the common law and common sense rule that in procedural matters the new rule is applicable to all proceedings whenever commenced, while giving the court discretion to avoid injustice.'

Although there is no provision in the Domestic Relations Law comparable to CPLR 10003, there is no logical or legal reason why the procedural and remedial provisions of sections 236 and 237 of the Domestic Relations Law should not be governed by the same law. To hold otherwise would merely make it advisable for the plaintiff to withdraw the motion and institute it anew or for the court to deny the motion without prejudice to renewing it, all of which would be a vain act and useless waste of time.

The application for alimony pendente lite will be considered first. The plaintiff's application for temporary alimony is challenged by the defendant on the ground that plaintiff is barred from obtaining such relief because the plaintiff is confronted by and must overcome the presumption of validity accorded to the ex parte divorce decree of Arkansas, in view of the Supreme Court decisions in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; id., 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. It is undisputed that such a decree is prima facie valid until its validity is impeached by evidence sufficient to establish that the foreign court's jurisdiction was defective (In the Matter of Holmes' Estate, 291 N.Y. 261, 52 N.E.2d 424, 150 A.L.R. 447; Franklin v. Franklin, 295 N.Y. 431, 68 N.E.2d 429; Dalton v. Dalton, 270 App.Div. 269, 270, 272, 59 N.Y.S.2d 68, 70, 71-72). However, defendant argues that plaintiff cannot overcome this presumption except by a final judgment after trial and not by proof, no matter how persuasive, submitted in affidavits on a motion for alimony pendente lite. In effect, the defendant's contention is that the decree is conclusive until nullified by another judgment and that a motion for temporary alimony is not entertainable because plaintiff cannot possibly show reasonable probability of success. The plaintiff takes the position that evidentiary matter in affidavits submitted on such motion can overcome the presumption of validity so as to show reasonable probability of success and that the plaintiff is not foreclosed from obtaining alimony pendente lite.

The defendant relies on the leading cases of Harris v. Harris, 279 App.Div. 542, 110 N.Y.S.2d 824 and Meenan v. Meenan, 286 App.Div. 775, 147 N.Y.S.2d 122, affd. 2 N.Y.2d 802, 159 N.Y.S.2d 701, 140 N.E.2d 551. The Harris case contains language which, if quoted out of context, seemingly could support the position of either party. Although the opinion states that the judgment of the sister state is valid until its nullity has been proved by competent evidence, there is no indication that this statement is limited to evidence adduced on a trial. The record on appeal in the Harris case disclosed that both sides submitted evidence as to whether or not the residence in the foreign state was bona fide and it quite clearly appeared that the husband in that case did in fact establish a bona fide domicile in the sister state, so that the wife had not demonstrated probability of success in her moving papers.

The defendant refers to an isolated statement in Meenan v. Meenan, supra, to the effect that the validity of the sister state decree can only be determined after a trial. However, it does not appear whether this statement was made as a general proposition of law applicable to all types of actions or whether it was made only in connection with an action brought under Section 1170-b of the Civil Practice Act having in mind the particular facts of that case. An examination of the Appellate Division decision and the question of law certified to the Court of Appeals demonstrates that the issue in that csae revolved around the power of the Supreme Court to grant temporary relief under the then newly enacted Section 1170-b of the Civil Practice Act. The question was answered in the negative because that section by its very terms did not include the power to grant alimony pendente lite. Section 1170-b empowered the court to grant permanent alimony to a wife even where the husband had obtained a valid ex parte divorce in another state. In the instant case plaintiff's action was not brought under Section 1170-b.

Although the court has considerable doubt as to whether the Harris and Meenan cases, supra, would be applicable to the causes of action and facts in the instant case, it is not necessary for the court to come to any final conclusion with respect thereto because even if defendant's interpretation of those cases be correct, they are no longer controlling in view of the change in law effected by the new sections of the Domestic Relations Law.

Notwithstanding the fact that numerous briefs of opposing counsel were submitted after the aforesaid new sections of the Domestic Relations Law went into effect, neither counsel considered or discussed said law on the erroneous assumption that no changes had been made in transferring the applicable sections of the Civil Practice Act to the Domestic Relations Law. A study of the legislative committee reports discloses that the Advisory Committee on Practice and Procedure delegated the question of changes in the matrimonial laws to the Joint Legislative Committee on Matrimonial and Family Laws which was devoting itself to a study of procedural changes in that area, and that such committee contemplated, suggested and drafted bills for major changes broadening the discretionary power of the court with respect to procedure regarding alimony, counsel fees, child custody and maintenance. The efforts of this Committee resulted in the enactment of Sections 236 and 237 of the Domestic Relations Law. (See, 1961 Report of Joint Legislative Committee on Matrimonial and Family Laws, Legislative Document No. 19, pp. 75, 76 and 98; 1962 Report, Document No. 34, pp. 27, 92, 309).

Many of the limitations on the court's discretionary powers have been removed by the new sections of the ...