Hytell v. Hytell
| Decision Date | 07 December 1964 |
| Citation | 254 N.Y.S.2d 851,44 Misc.2d 663 |
| Parties | Louise HYTELL, Plaintiff, v. Herman HYTELL, Defendant. |
| Court | New York Supreme Court |
Herbert E. Greene, Roslyn Heights, for plaintiff.
Bennett, Kaye & Schooly, Rockville Centre, for defendant; John, M. Farrell, Jr., Rockville Centre, of counsel.
In her first cause of action plaintiff seeks a declaratory judgment that she is the wife of defendant and that a Mexican divorce obtained by him is of no force and effect; in the second cause of action she asks that a separation agreement executed by her be cancelled and set aside. An affirmative defense of consent to the Mexican divorce and estoppel is alleged by defendant. Judgment will be entered on the first cause of action declaring the Mexican divorce valid and binding upon plaintiff, and dismissing the second cause of action in the exercise of discretion.
Except for testimony concerning the law of Mexico, most of the facts have been stipulated. Plaintiff and defendant were married in 1933 and separated February 16, 1957. In April 1957 plaintiff began a separation action in Nassau County Supreme Court. A separation agreement dated June 12, 1957 was entered into providing for the payment of $7,500 to plaintiff in discharge of all obligations of defendant, the consideration to be held in escrow until plaintiff obatined a divorce. Shortly thereafter plaintiff commenced an action for diverce in Chihuahua, Mexico, through Mexican attorney Trias retained by her for that purpose. No evidence concerning the nature of the retainer of Attorney Trias or whether a power of attorney was furnished him has been presented. Defendant, by power of attorney dated June 12, 1957 authorized his appearance in that action by Mexican attorney Flores. By telegram dated August 20, 1957 and confirming letter dated August 21, 1957, plaintiff's New York counsel instructed attorney Trias to dismiss and discontinue plaintiff's Mexican action. Plaintiff never appeared personally in Mexico.
On or about September 27, 1957, defendant filed with the Chihuahua Court a complaint for divorce from plaintiff, without plaintiff's knowledge or consent. On October 8, 1957, defendant personally appeared in Juarez and signed the Book of Residence and personally appeared in court and presented his complaint. On October 11, 1957, a decree of divorce was granted to defendant by the Mexican court. The decree recites that service on plaintiff was made by serving Attorney Trias who had commenced her proceeding. In October 1957, plaintiff served her complaint in the Nassau separation action and brought suit in the Nassau County District Court against the escrow agent for the monies held under the June 12, 1957 separation agreement. The court takes judicial note of the fact that in the District Court action plaintiff's motion was dismissed on jurisdictional grounds and in the separation action, an order was made awarding plaintiff $35 per week as temporary alimony. Negotiations between the parties were then resumed and on March 25, 1958, a second separation agreement was executed by the parties. It recited the October 11, 1957 decree obtained by the husband in Mexico. Under the agreement defendant undertook to pay plaintiff $5,500 plus $25 per week for a period of five years which the wife accepted in foll satisfaction of her right to support, and it was agreed that either party could sue 'for absolute divorce in any competent jurisdiction because of any past or future fault on the other's part' and that the agreement should be incorporated by reference but should survive the decree.
On March 25, 1958 plaintiff executed a power of attorney authorizing Attorney Trias to appear for her in the Chihuahua action 'and to state in my name my complete conformity with the judgment which was pronounced in the same action for absolute divorce, and therefore accepting the same in its entirety as a final judgment'. Trias made such appearance on April 7, 1958, and on April 10, 1958, the Chihuahua court appended to its October 11, 1957 judgment a decision reciting plaintiff's appearance and submission and 'accepted in its entirety the pleading of the defendant [plaintiff in this action] Louise Hytell, ordering that the said pleading in this divorce action be recorded in the record of this Court.' Neither plaintiff nor defendant personally appeared in Mexico between April 7, 1958 and April 10, 1958. All of the weekly payments required by the March 25, 1958 separation agreement have been made by defendant. Neither the October 11, 1957 Mexican decree nor the April 10, 1958 decision make any reference to a separation agreement between the parties. The present action was commenced November 16, 1961.
Mexican decrees are recognized in this state if 'the petitioning spouse has appeared in person and the answering spouse in person or by attorney', Rosenstiel v. Rosenstiel, 21 A.D.2d 635, 638, 253 N.Y.S.2d 206, 209; andcases cited. In the proceeding in which defendant's decree of divorce was obtained, defendant appeared in person in September 1957 and plaintiff by attorney in April 1958. A good deal of plaintiff's argument has been directed to the invalidity of service of defendant's Mexican complaint upon attorney Trias. Plaintiff has failed to sustain her burden in this respect since she has produced no evidence concerning Trias' authority and has made no showing that Mexican law does not authorize service upon him of a complaint relating to the same subject matter for which plaintiff retained him to begin action in Mexico, as would be the case in New York, CPLR § 303. But even if it be assumed that service of the Mexican complaint on Trias was not authorized, the Mexican decree is not invalid. Plaintiff argues that Mexican law does not recognize a nunc pro tunc order and the...
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