Gardner v. Gardner

• Citation: 81 Misc.2d 734,367 N.Y.S.2d 910
• Parties: . John Flagg GARDNER, Respondent. Family Court, Ulster County
• Decision Date: 14 April 1975
• Court: New York Family Court

Page 910

367 N.Y.S.2d 910

81 Misc.2d 734

In the Matter of a Proceeding for Support Under Article 4 of

the Family Court Act, Marilyn GARDNER, Petitioner, v. John Flagg GARDNER, Respondent.

Family Court, Ulster County.

April 14, 1975.

Forrester & Tomashevski (Richard F. Tomashevski, Newburgh, of counsel), for petitioner.

Stanton & Stanton, New Windsor (John G. Stanton, New Windsor, of counsel), for respondent.

HUGH R. ELWYN, Judge:

The petitioner brings this proceeding pursuant to Article 4 of the Family Court Act to enforce her husband's duty of support (Family Court Act § 412). The parties were married at Springfield, Mass. on September 4, 1948, but ceased to live together sometime in 1965. There are no children of the marriage. On October 3, 1972 the respondent obtained a Nevada divorce, and has since remarried.

The respondent seeks a dismissal of the proceeding upon the ground that the judgment and decree of divorce which he obtained in the Courts of the State of Nevada has effectively dissolved the marriage; that the decree is entitled to be accorded full faith and credit by the Courts of New York (U.S.Const. Art. IV, § 1; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279) and that since the petitioner no longer has the status of a lawful wife she may not maintain this proceeding (Matter of Martin v. Martin, 58 Misc.2d 459, 461, 296 N.Y.S.2d 453, 455).

'It is (of course) fundamental that the obligation of a husband to support his wife must be based upon a valid marriage. (Family Ct. Act § 412; Matter of Carter v. Carter, 19 A.D.2d 513, 240 N.Y.S.2d 141.) Thus, jurisdiction of the court in a support proceeding brought by a former wife is always subject to attack on the ground that a valid divorce exists between the parties. (Matter of Carter v. Carter, supra.)' (In the Matter of Aletha Butts 'MM' v. Donald Melvin 'MM', 39 A.D.2d 995, 333 N.Y.S.2d 581).

'The Family Court as an incident to the exercise of its jurisdiction may deny full faith and credit to an ex parte foreign divorce decree if it finds that a bona fide domicile was not established in a foreign jurisdiction. (Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Wilkov v. Wilkov, 13 A.D.2d 471, 212 N.Y.S.2d 91; Sierra v. Sierra, 8 A.D.2d 708, 185 N.Y.S.2d 611; Loomis v. Loomis, 288 N.Y. 222, 42 N.E.2d 495.)' (Matter of Carter v. Carter, 19 A.D.2d 513, 240 N.Y.S.2d 141; see also Erdt v. Erdt, 77 Misc.2d 236, 238, 353 N.Y.S.2d 600, 602).

'There is a presumption of validity of a foreign divorce decree, and the burden is upon the person who attacks it to establish that such decree is invalid.' (Matter of Carter v. Carter, supra.) 'The burden of undermining the verity which the Nevarda decrees import rests heavily upon the assailant.' (Williams v. North Carolina, 325 U.S. 226, 233--234, 65 S.Ct. 1092, 1097, 89 L.Ed. 1577).

The petitioner attacks the validity of the Nevada divorce decree upon two grounds: (1) invalidity of the manner of the service of process upon her in the State of New York and (2) the bona fides of the respondent's domicile in Nevada.

With respect to the first ground, the petitioner contends that she was not personally served with the summons issued by the Nevada Court, but that the process server after gaining admittance to the residence in Plattsburgh, N.Y. where she was temporarily sojourning, asked if she were Marilyn Gardner to which she made no reply whereupon, he threw the paper on a table and it fell to the floor. It is not clear whether the petitioner over actually read the summons from the Nevada Court, but it does appear that she had some knowledge of the institution of the divorce proceeding for she acknowledges that after the incident she consulted at least four lawyers with reference to contesting the divorce, all of whom advised her not to contest it.

Attached to the summons as a part of the judgment roll in the Nevada divorce proceedings is an affidavit of service showing personal service of the summons and complaint on Marilyn Ruth Gardner at Plattsburgh, N.Y., on September 11, 1972. There is, of course, a general presumption of regularity attaching to judicial proceedings, but even if the petitioner's version of the manner of service be accepted as accurate, the manner of service of the summons, while perhaps irregular, is not invalid so as to vitiate the entire proceeding (CPLR § 308; McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115, 291 N.Y.S.2d 328, 331, 238 N.E.2d 726; Schenkman v. Schenkman, 206 Misc. 660, 136 N.Y.S.2d 405, affd. 284 App.Div. 1068, 137 N.Y.S.2d 628; Levine v. National Transp. Co., 204 Misc. 202, 125 N.Y.S.2d 679, affd. 282 App.Div. 720, 122 N.Y.S.2d 901; Matter of Barbara, 7 A.D.2d 340, 183 N.Y.S.2d 147; Buscher v. Ehrich, 12 A.D.2d 887, 209 N.Y.S.2d 941; Chernick v. Rodriguez, 2 Misc.2d 891, 150 N.Y.S.2d 149; Green v. Morningside Hgts. Housing Corp., 13 Misc.2d 124, 125, 177 N.Y.S.2d 760, affd. 7 A.D.2d 708, 180 N.Y.S.2d 104; cf. Miller v. Alda Corp., 53 Misc.2d 279, 278 N.Y.S.2d 574). There was in this case a sufficient personal delivery of the summons to comply with CPLR 308.

With respect to the second ground, i.e. the bona fides of the respondent's Nevada domicile, the respondent's uncontroverted testimony is that he left New York State on July 4, 1972, to go to Nevada to seek employment because he had been laid off due to lack of work. He gave up the apartment which he had, closed out his checking account and went to his local union, got clearance and informed them that he was moving to the west coast. Upon arriving in the west he stopped at Reno, Nevada and checked in with the local union hall. He was, however, unable to find work as a crane operator in either Nevada or California, so he took a temporary job in a Gulf service station. While in Nevada he rented an apartment, opened a checking account, gave up his New York State operator's license and got both operator's license and registration for his car in the State of Nevada. He also registered to vote and actually voted in the 1972 presidential election in Nevada by absentee ballot, having returned to New York State prior to election day. When he lost his job in the gas station he traveled to California in search of work, but, having no success there, returned to Nevada and finally, due to his inability to find work in Nevada, in October of 1972 returned to New York. The respondent testified that when he left New York it was with the intention of living on the west coast permanently and that he intended to establish his domicile in Nevada.

In my opinion, the uncontroverted evidence in this case establishes that the respondent genuinely intended to make Nevada his home when he went there for the purpose of seeking employment, having been laid off from his job due to lack of work. I find that he was domiciled in Nevada when he obtained the divorce from the petitioner; that the petitioner has not met her burden of undermining its validity and that consequently the Nevada divorce must be given full faith and credit in this State (Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113, affd. 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; see also Chenu v. Board of Trustees, 12 A.D.2d 422, 424, 212 N.Y.S.2d 818, 820; Maray v. Maray, 35 A.D.2d 603, 314 N.Y.S.2d 366; F. Foster-Freed, Law and the Family, 9.8).

Although the decree must therefore be recognized as effectively dissolving the marriage, the Family Court is not thereby deprived of jurisdiction to afford relief to the wife. The Nevada divorce decree recites and an affidavit of service shows that the wife was served with the summons at Plattsburgh, New York. Since the wife did not appear in the action, the Nevada divorce decree was rendered without that court ever having acquired in personam jurisdiction over her. That being the case, the seemingly paradoxical doctrine of 'divisible divorce' becomes operative to preserve for the wife the economic benefits of the marriage (See Estin v. Estin, 296 N.Y. 308, 72 N.E.2d 18, affd. 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1651; Kreiger v. Kreiger, 297 N.Y. 530, 74 N.E.2d 468, affd. 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572; Barber v. Barber, 21 How. (U.S.) 582, 16 L.Ed. 226; cf. Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, cert. denied 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640).

Precisely in point is DePena v. DePena, 31 A.D.2d 415, 298 N.Y.S.2d 188, wherein the Appellate Division (1st Dept.) in a proceeding for support in the Family Court wherein the respondent sought to escape liability for the support of his wife by virtue of a Dominican Republic divorce...