John v. John

• Decision Date: 09 July 1965
• Citation: 16 N.Y.2d 825,263 N.Y.S.2d 166
• Parties: , 210 N.E.2d 457 Elizabeth Bowman JOHN, Appellant, v. William Edgar JOHN, Jr., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 166

263 N.Y.S.2d 166

16 N.Y.2d 825, 210 N.E.2d 457

Elizabeth Bowman JOHN, Appellant, v. William Edgar JOHN, Jr., Respondent.

Court of Appeals of New York.

July 9, 1965.

Appeal from Supreme Court, Appellate Division, Second Department, 22 A.D.2d 804, 254 N.Y.S.2d 828.

Wife, who was a resident of Florida, brought action for judicial separation in New York.

The Supreme Court, Westchester County, John P. Donohoe, J., entered an order on reargument denying the motion of the wife for temporary alimony and counsel fee, and granting the cross motion of the husband to dismiss the complaint on the grounds that the parties were no longer husband and wife by reason of a Florida divorce decree which the wife had obtained against the husband on his default after constructive service of process on him, and on ground that the divorce decree was unaffected by a subsequent Florida decree, made on the wife's application to the Florida court without notice to the husband, vacating the divorce decree and declaring it to be void. The wife appealed.

The Appellate Division affirmed the order without opinion. Christ and Brennan, JJ., dissented and voted to remit the matter to the Special Term for determination on the merits of the wife's motion for alimony and counsel fee pendente lite, on ground that New York courts were not required to give full faith and credit to foreign divorce decree which had been declared void and set aside. The wife appealed to the Court of Appeals.

The Court of Appeals, 16 N.Y.2d 675, 261 N.Y.S.2d 299, 209 N.E.2d 289, reversed the order on the dissenting opinion at the Appellate Division and remitted the matter to the Special Term for determination on the merits of the wife's motion for temporary alimony and counsel fees.

Motion was made in the Court of Appeals to amend the remittitur.

Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, as follows: Defendant-respondent argued that the vacatur order relied upon by plaintiff herein violated defendant's rights under and was repugnant to the Fourteenth Amendment to the Federal Constitution, and that such vacatur order was not entitled to credit under and was repugnant to article IV of that Constitution. The Court of Appeals held there was no violation of defendant-respondent's...