Katz v. Katz
| Decision Date | 25 June 1979 |
| Citation | 418 N.Y.S.2d 99,68 A.D.2d 536 |
| Parties | Rochelle KATZ, Respondent-Appellant, v. Alan KATZ, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Joel R. Brandes, Garden City, for respondent-appellant.
Arnold B. Firestone, Hauppauge, for appellant-respondent.
Before HOPKINS, J. P., and DAMIANI, TITONE and MARTUSCELLO, JJ.
This action seeking a separation was commenced by the wife by service of a summons and an ex parte order sequestering certain of defendant's assets within this State and providing, pursuant to CPLR 308 (subd. 5) and section 232 of the Domestic Relations Law, that service of the summons might be made upon defendant by mail at his business address in California. Thereafter defendant appeared in this action and, upon receipt of the complaint which alleged adultery, abandonment and cruel and inhuman treatment of the plaintiff by the defendant, he served his answer consisting solely of a general denial. No motion was made to dismiss for lack of personal jurisdiction and the defendant's answer failed to raise any jurisdictional objection. Accordingly, the Supreme Court had jurisdiction over defendant's person (see CPLR 3211, subd. (e)).
On or about November 7, 1977, defendant commenced an action for divorce in the Superior Court of the State of California. On December 6, 1977 the plaintiff moved in the instant action by order to show cause, containing a temporary restraining order which was served upon defendant's New York attorney, for an award of temporary alimony and to enjoin defendant from proceeding with his California divorce action. Determination of this motion was subsequently referred to the trial court. On December 22, 1977 defendant procured an interlocutory judgment of divorce from the California court.
On January 5, 1978 plaintiff moved by order to show cause, served upon defendant's New York counsel, to punish defendant for contempt of court in that he obtained the interlocutory California divorce judgment after being served with the temporary restraining order of December 6, 1977. Ultimately, this motion to punish defendant for contempt was consolidated with the application for an injunction and was referred to the trial court.
On April 5, 1978 plaintiff moved for a trial preference and for leave to conduct an oral examination of defendant prior to trial. On April 18, 1978 the application for an examination before trial was granted without opposition.
On or about April 20, 1978, plaintiff notified defendant of her intention to move at trial to amend her complaint to seek a divorce rather than a separation. Defendant failed to appear for the examination before trial as directed by the order of April 18, 1978.
On May 15, 1978 the plaintiff appeared with her counsel for trial. Defendant appeared by his attorney. Plaintiff moved to strike defendant's answer because of his failure to appear for the examination before trial. Defendant's counsel argued that this action was moot because at 8 A.M. on that very morning, plaintiff had obtained a final judgment of divorce in California. Thereupon the trial court granted plaintiff's motion to strike defendant's answer and the motion to hold defendant in contempt of court was submitted for determination on the basis of the papers previously filed with the court. The proceedings were adjourned until 2 P.M. for the purpose of holding an inquest. Defendant's attorney did not appear at the inquest, and plaintiff thereupon adduced proof of her allegations of adultery, abandonment and cruel and inhuman treatment and of her financial needs. Plaintiff's motion to amend her pleading so as to seek a divorce rather than a separation was granted and the court reserved decision on the application to punish defendant for contempt of court. On or about May 23, 1978, an affirmation of services was submitted by plaintiff's counsel, on notice to defendant, in connection with her application for an award of counsel fees. The defendant submitted no papers in opposition.
On August 30, 1978 a judgment was entered in favor of plaintiff, granting her a divorce, custody of the infant child of the parties, an award of alimony and child support and an award of counsel fees. The paragraphs of the proposed judgment submitted by plaintiff which found as a fact that defendant had committed a contempt of court and which imposed a penalty for the contempt were stricken from the judgment as signed. However, the court failed to substitute a decretal paragraph therefor deciding the motion to punish defendant for contempt.
Defendant has appealed from the judgment contending, with respect thereto, Inter alia, that plaintiff failed to prove a prima facie case for a divorce, that the financial awards to the wife were improper, that the award of counsel fees was excessive, and that certain rulings of the court during trial were erroneous. The husband's appeal also purports to bring up for review: (1) an ex parte order dated October 26, 1977, which, Inter alia, granted plaintiff's motion for the sequestration of certain of defendant's assets; (2) an order to show cause dated December 6, 1977, which temporarily restrained defendant from maintaining his action for divorce in the courts of the State of California, which was commenced after the present action was instituted; (3) so much of an order to show cause dated February 27, 1978, as permitted service of motion papers seeking reargument of a motion to hold defendant in contempt of court upon defendant's New York attorney; (4) so much of an order to show cause dated April 5, 1978, as permitted service of plaintiff's motion papers for a trial preference and leave to conduct an examination before trial of defendant upon defendant's New York attorney; and (5) an order dated April 18, 1978, which granted plaintiff's motion for a trial preference and an examination before trial of the defendant. The plaintiff has cross-appealed from so much of the judgment of divorce as allegedly denied her application to punish defendant for contempt of court.
Before proceeding to a consideration of the substantive issues raised by the parties, it is necessary to examine the question of this court's power to review the final judgment of divorce and the intermediate orders in question. In the case of James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741, the Court of Appeals noted that where a defendant's answer has been stricken, a judgment entered thereafter in favor of the plaintiff is, in effect, based in part upon a default by the defendant. The court held that despite the provisions of CPLR 5511 () an appeal would lie from such a final judgment but review would be limited to "matters which were the subject of contest below" (Supra, p. 256, n. 3, 279 N.Y.S.2d, p. 15, 225 N.E.2d, p. 744).
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...remaining contentions are not properly before us, as the remaining branches of their motion are pending and undecided (see Katz v Katz, 68 A.D.2d 536). MASTRO, J.P., and CONNOLLY, J, WOOTEN, J., concurs in the result, and votes to reverse the order, on the law, and deny that branch of the m......
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