John v. John

Citation254 N.Y.S.2d 828,22 A.D.2d 804
PartiesElizabeth Bowman JOHN, Appellant, v. William Edgar JOHN, Jr., Respondent.
Decision Date09 November 1964
CourtNew York Supreme Court Appellate Division

Irving Heisler, New York City, for appellant.

Monroe J. Cahn, New York City, for respondent.

In an action for a judicial separation, the plaintiff wife, a resident of the State of Florida, appeals from an order of the Supreme Court, Westchester County, made April 28, 1964 upon reargument, which: (1) denied her motion for temporary alimony and counsel fee; and (2) granted the defendant husband's cross motion to dismiss the complaint on the grounds: (a) that the parties are no longer husband and wife by reason of a Florida decree of divorce which the wife had obtained against the husband on his default after constructive service of process upon him, and (b) that said decree is 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 null and void. Order affirmed, without costs. No opinion.

BELDOCK, P. J., and UGHETTA and KLEINFELD, JJ., concur.

CHRIST and BRENNAN, JJ., dissent and vote to reverse the order, to deny the cross motion and to remit the matter to the Special Term for determination on the merits of plaintiff's motion for alimony and counsel fee pendente lite, with the following memorandum by BRENNAN, J., in which CHRIST, J., concurs:

I cannot agree that the courts of this State must give full faith and credit to a divorce decree which has been 'set aside, declared void and held for naught' in the State of its rendition. In my opinion it is not a denial of due process not to give further notice of proceedings to a defaulting party. The notice essential to due process is the original notice giving jurisdiction, and not notice of the time for the exercise of jurisdiction already vested; and, after jurisdiction has duly attached, it has been said that a party has no constitutional right to demand notice of further proceedings (16A C.J.S. Constitutional Law, § 619, p. 803). Indeed, under the New York practice, no service of papers need be made upon a party who is in default for failure to appear (CPLR Rule 2103, subd. [e]). In Florida, a similar procedural rule obtains:

'RULE 1.4. SERVICE OF PLEADINGS AND PAPERS

'(a) Service; When Required. Every pleading subsequent to the initial pleadings, unless the court otherwise orders, and every order, judgment or decree not entered in open court, every written motion unless it is one as to which a hearing ex parte is authorized, and every written notice, demand and similar paper shall be served on each party affected thereby, but no service need be made on parties against whom a default or decree pro confesso has been entered except that pleadings asserting new or additional claims for relief against them shall be served in the manner...

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3 cases
  • DiRusso v. DiRusso
    • United States
    • United States State Supreme Court (New York)
    • January 24, 1968
    ...of review served upon him, John v. John, 16 N.Y.2d 675, 261 N.Y.S.2d 299, 209 N.E.2d 289, rev'd on the dissenting opinion below, 22 A.D.2d 804, 254 N.Y.S.2d 828, remittitur amended 16 N.Y.2d 825, 263 N.Y.S.2d 166, 210 N.E.2d 457, app. dism'd for want of jurisdiction and, treated as an appli......
  • John v. John
    • United States
    • New York Court of Appeals
    • July 9, 1965
    ...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 The Supreme Court, Westchester County, John P. D......
  • John v. John
    • United States
    • New York Court of Appeals
    • June 10, 1965
    ...Jr., Respondent. Court of Appeals of New York. June 10, 1965. Appeal from Supreme Court, Appellate Division, Second Department, 22 A.D.2d 804, 254 N.Y.S.2d 828. Action for judicial From an order of the Supreme Court, Westchester County, made April 28, 1964 upon reargument, John P. Donohoe, ......

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