Fischer v. Fischer

• Decision Date: 18 November 1930
• Citation: 254 N.Y. 463,173 N.E. 680
• Parties: FISCHER v. FISCHER.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 463

173 N.E. 680

FISCHER

v.FISCHER.

Court of Appeals of New York.

Nov. 18, 1930.

Action by Ida Fischer against Arthur Fischer. From a judgment of the Appellate Division (228 App. Div. 771, 239 N. Y. S. 877) affirming a judgment for a separation and alimony, defendant appeals.

Reversed, and complaint dismissed.Appeal from Supreme Court, Appellate Division, First department.

I. Maurice Wormser, Robert H. Elder and Abraham N. Davis, all of New York City, for appellant.

M. Michael Edelstein, of New York City, for respondent.

O'BRIEN, J.

At New York City, plaintiff and Bernard Dolinsky, both domiciled and resident in this state, intermarried. Always since that time she has remained domiciled and resident in New York. For the sole purpose of instituting an action for divorce against Dolinsky on grounds other than adultery, she went to Nevada. She intended, after the rendition of a decree, immediately to return here and consequently she never became a resident of that state. She temporarily lived there merely to give some appearance of colorable right to maintain her action. In her suit in the district court at Reno based upon cruelty and neglect, Dolinsky was personally served at New York, but he did not appear nor was he represented by counsel. A decree purporting to dissolve the marriage was entered in Nevada and plaintiff returned to New York. After the expiration of five months and during the lifetime of Dolinsky, she went through the form of a marriage ceremony in New Jersey with defendant Fischer, who was and is domiciled and resident in New York. They lived together less than three months. In the present action, based upon descertion, she has recovered judgment against him for separation and alimony which has been unanimously affirmed. Appeal is by permission of this court.

The invalidity of the Nevada decree is not open to doubt in this state (Atherton v. Atherton, 181 U. S. 155, 21 S. Ct. 544, 45 L. Ed. 794;Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1;Olmsted v. Olmsted, 216 U. S. 386, 30 S. Ct. 292,54 L. Ed. 930,25 L. R. A. [N. S.] 1292;Baumann v. Baumann, 250 N. Y. 382, 165 N. E. 819; Bishop on Marriage, Divorce and Separation, vol. 2, § 102), and the courts below have not otherwise decided. The theory upon which plaintiff has succeeded rests upon a supposed resemblance in principle to Kaufman v. Kaufman, 177 App. Div. 162, 163 N. Y. S. 566, and upon the judicial declaration that defendant is estopped from assailing the validity of the foreign judgment. The judgment in the Kaufman Case never was reviewed by this court. In Hubbard v. Hubbard, 228 N. Y. 81, 126 N. E. 508, it was cited on the briefs but was not mentioned in the opinion. Even if approval of its doctrine were to be assumed, its essential facts are so unlike these at bar as to prevent the application of the rule. There the New York citizenship and residence of the first husband were unproved. Also the complaint in that action by the second husband for an annulment demanded affirmative relief. Here defendant does not come into court with demand for affirmative relief. He merely alleges plaintiff's marriage with Dolinsky, denies plaintiff's allegation concerning his own marriage with her, and puts her to her proof to show that such allegation is correct. In every action for...