Feinberg v. Feinberg

• Citation: 48 A.D.2d 890,372 N.Y.S.2d 981
• Parties: Audrey FEINBERG, Appellant, v. Herbert FEINBERG, Respondent.
• Decision Date: 23 June 1975
• Court: New York Supreme Court Appellate Division

Page 981

372 N.Y.S.2d 981

48 A.D.2d 890

Audrey FEINBERG, Appellant, v. Herbert FEINBERG, Respondent.

Supreme Court of New York, Appellate Division,

Second Department.

June 23, 1975.

Holtzmann, Wise & Shepard, New York City (Norman Solovay, New York City, of counsel), for appellant.

Kaufman, Taylor, Kimmel & Miller, New York City (Irwin M. Taylor, New York City, and Milton G. Gershenson, Brooklyn, of counsel), for respondent.

In an action to nullify a separation agreement and a divorce decree of the Dominican Republic and to recover damages, plaintiff appeals from an order of the Supreme Court, Nassau County, dated June 4, 1974, which denied her motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. Order affirmed, without costs. Although we are affirming, we do not agree with Special Term that fraud was established.

LATHAM, CHRIST, BRENNAN and SHAPIRO, JJ., concur.

HOPKINS, Acting P.J., dissents and votes to modify the order so as to deny the cross motion of respondent for summary judgment as well as the motion of appellant, with the following memorandum:

The action was brought by appellant to set aside a separation agreement and a divorce decree obtained in the Dominican Republic incorporating the agreement, on the ground of fraud practiced by respondent in inducing appellant to execute the agreement. Special Term denied appellant's motion for summary judgment and granted respondent's cross motion for summary judgment dismissing the complaint. Although Special Term found that respondent was guilty of fraud vitiating the agreement, it held that the action would not lie because the Dominican divorce decree could not be attacked collaterally in New York. In my view, both the factual issue of fraud and the legal issue of collateral attack must await a trial and both motions for summary judgment should have been denied. I consider first the question of insulation of the divorce decree from challenge. It is not altogether accurate to say that the incorporation of the agreement within the foreign decree renders the agreement impervious to attack on the ground of fraud inducing the agreement. Even under the full faith and credit clause of the Federal Constitution, where the rendering state permits assault on its judgment on such a ground, the forum state may also (Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Sullivan v. Mandigo, 39 A.D.2d 111, 332 N.Y.S.2d 200; cf. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635). The guaranty of full faith and credit to state decrees does not, of course, extend to decrees of foreign countries, but the effect of Res judicata which is...