Krause v. Krause

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation282 N.Y. 355,26 N.E.2d 290
Decision Date12 March 1940
PartiesKRAUSE v. KRAUSE.

282 N.Y. 355
26 N.E.2d 290

KRAUSE
v.
KRAUSE.

Court of Appeals of New York.

March 12, 1940.


Appeal from Supreme Court, Appellate Division, First Department.

Action for separation by Anna Krause against Bernard Krause. An order of the Special Term striking out the second defense contained in the answer was affirmed by the Appellate Division, 256 App.Div. 906, 10 N.Y.S.2d 237, and defendant appeals upon certified question with permission granted in 256 App.Div. 977, 11 N.Y.S.2d 254.

Order affirmed and question certified answered in the negative.

LOUGHRAN and LEWIS, JJ., dissenting.

[26 N.E.2d 290]

David Krause, David Altschul, and Milton Altschul, all of New York City, for appellant.

A. Albert Bennin and I. Joel Komarow, both of New York City, for respondent.


FINCH, Judge.

This is an action for separation brought by a wife in which she seeks support. The

[26 N.E.2d 291]

husband seeks to avoid liability to plaintiff by alleging the invalidity of a Nevada divorce which he obtained from his first wife. May he avail himself of such a defense?

The answer interposes two separate and distinct defenses. It is only the second defense with which we are concerned.

The facts presented by the defense are as follows: Defendant and his first wife, domiciled in this State, were married here in 1905. There are two children by that marriage. In 1932 the present defendant, while retaining his residence in this State, made a visit to Reno, Nev., where he invoked the jurisdiction of the courts of that State and obtained a decree of divorce from his first wife, who neither entered an appearance nor was personally served in that action, and who at all times has remained a resident of this State. Cf. Glaser v. Glaser, 276 N.Y. 296, 12 N.E.2d 305. Consequently this divorce against the first wife is not recognized by the courts of this State. Winston v. Winston, 165 N.Y. 553, 59 N.E. 273;Hubbard v. Hubbard, 228 N.Y. 81, 126 N.E. 508;Lefferts v. Lefferts, 263 N.Y. 131, 188 N.E. 279. The subsequent marriage between plaintiff and defendant, therefore, was void for the incapacity of defendant to marry. But none the less plaintiff and defendant participated in a complete marriage ceremony and did live together as man and wife for six years pursuant thereto, after which time defendant abandoned plaintiff, who now brings this action. Defendant entered the defense already noted, viz., that he lacked capacity to marry plaintiff because the court, which upon his petition purported to accord him a divorce from his first wife, lacked jurisdiction to act in the premises. Upon motion of plaintiff Special Term struck out the defense as insufficient in law and cited Starbuck v. Starbuck, 173 N.Y. 503, 66 N.E. 193,93 Am.St.Rep. 631, in support of its decision. The Appellate Division affirmed by a divided court, the majority citing Brown v. Brown, 242 App.Div. 33, 272 N.Y.S. 877; affirmed 266 N.Y. 532, 195 N.E. 186, and the minority citing Stevens v. Stevens, 273 N.Y. 157, 7 N.E.2d 26, 109 A.L.R. 1016. Defendant appeals upon the following question, certified by the Appellate Division to this court: ‘Is the second, separate and distinct defense in the amended answer, sufficient in law on the face thereof?’

The question upon this appeal, therefore, depends upon whether defendant husband may now be heard to assert in this action, brought by his second ‘wife,’ that the judgment of divorce which he sought and obtained failed of its purpose and thereby did not give to the defendant that freedom to remarry which he appeared to possess by virtue of said judgment.

In general, a person who invokes the jurisdiction of a court will not be heard to repudiate the judgment which that court entered upon his seeking and in his favor. 1 Freeman on the Law of Judgments, 5th Ed., s 320; cases collated in 3 A.L.R. 535. The rule has been applied in this State in cases where property rights arising out of the marriage have been involved. Starbuck v. Starbuck, supra; Bell v. Little, 204 App.Div. 235, 197 N.Y.S. 674, affirmed 237 N.Y. 519, 143 N.E. 726;Hynes v. Title Guarantee & Trust Co., 273 N.Y. 612, 7 N.E.2d 719. It is said, however, that in Stevens v. Stevens, supra, we have answered the question upon which the case at bar turns. But in the Stevens case an action for separation was brought in this State by a wife against her husband who had previously secured a divorce in a Nevada court which was admittedly without jurisdiction. The husband counterclaimed for a divorce. At the trial the wife sought to defeat the counterclaim by introducing in evidence the Nevada divorce obtained by the husband in order to put him in a position where he could not maintain his claim for divorce because he was no longer the husband of the wife. Upon the facts of that case this court held that the husband was not prevented from maintaining the action for divorce despite the prior Nevada decree which he had obtained. ‘Our conclusion is that the award of the Nevada decree to the husband should have no effect upon the right of either party to a full adjudication in this action upon the conceded fact of their existing marital status.’ 273 N.Y. at page 158, 7 N.E.2d at page 26, 109 A.L.R. 1016. The court clearly indicated the effect of the decision when it stated that ‘We need not inquire what the result would be in some further event that has not happened.’ 273 N.Y. at page 159, 7 N.E.2d at page 27, 109 A.L.R. 1016. Thus, the very language

[26 N.E.2d 292]

of the opinion of this court in the Stevens case indicated that it would not control a different situation. In the Stevens case the position which the husband assumed in the proceedings in this State was inconsistent with the decree which he had obtained in Nevada only in the sense that as part of a cause of action for divorce it is necessary to prove the marriage. Fischer v. Fischer, 254 N.Y. 463, 173 N.E. 680;Jones v. Jones, 108 N.Y. 415, 15 N.E. 707,2 Am.St.Rep. 447. But the action which he sought to take was parallel with that which he had previously undertaken in the Nevada proceedings in that the object of both was the same, to wit, termination of the marriage with his wife. Such is not the situation in the case at bar where the action which defendant seeks to take is inconsistent with the result purportedly achieved by the invalid Nevada decree.

In Vose v. Vose, 280 N.Y. 779, 21 N.E.2d 616, the plaintiff in a prior action was allowed to repudiate the judgment of divorce which he had obtained. In that case neither of the parties ever left this State and the judgment which was repudiated was that of a divorce by a Mexican court which had not even the slightest semblance of jurisdiction to act in the premises. The husband and the wife in that case had merely entered into a collusive agreement to obtain from a court of a foreign country in which correspondence through the mails constituted the only nexus between either of the interested parties and the court which entered the judgment of divorce. In this case it may be observed also that section 51 of the Domestic Relations Law (Consol.Laws, ch. 14) interdicts any agreement between a husband and wife ‘to alter or dissolve a marriage or to relieve the husband from his liability to support his wife.’ It is urged, on the other hand, that in Brown v. Brown, supra, we took a position which does not permit a defendant under the circumstances of the case at bar to repudiate his obligation to support the wife. The Brown case may also be said to have...

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86 practice notes
  • Rediker v. Rediker
    • United States
    • United States State Supreme Court (California)
    • August 18, 1950
    ...391, 392, 157 A. 676; Van Slyke v. Van Slyke, 186 Mich. 324, 330, 152 N.W. 921; Bowen v. Fink, D.C., 34 F.Supp. 235; Krause v. Krause, 282 N.Y. 355, 360, 26 N.E.2d 290; Brown v. Brown, 242 App.Div. 33, 272 N.Y.S. 877, affirmed 266 N.Y. 532, 195 N.E. 186; Chapman v. Chapman, 224 Mass. 427, 4......
  • Wiesenfeld v. State of NY, No. 79 Civ. 0106.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 9, 1979
    ...of aliens). 16 See, e. g., N.Y.Fam.Ct. Act §§ 412, 413 (McKinney 1975); N.Y.Dom.Rel.Law § 236 (McKinney 1977); Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290 (1940); Gratt v. Gratt, 202 Misc. 835, 116 N.Y.S.2d 380 (Sup.Ct.1952). That the wife is not a public charge and is living in the same ......
  • DiRusso v. DiRusso, V--A
    • United States
    • New York Supreme Court
    • January 24, 1968
    ...court (and wholly apart from any estoppel against plaintiff which could not in any event validate defendants' marriage, Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290; see Note: 36 St. John's L.R. 126, 142; cf. Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J.......
  • Kazin v. Kazin
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1979
    ...; Fox v. Fox, 247 Ark. 188, 444 S.W.2d 865 (Sup.Ct.1969); Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19 (Sup.Ct.1952); Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290 (Ct.App.1940); Clagett v. King, 308 A.2d 245 (D.C.App.1973); Oakley v. Oakley, 30 Colo.App. 292, 493 P.2d 381 (Ct.App.1971), Ce......
  • Request a trial to view additional results
86 cases
  • Rediker v. Rediker
    • United States
    • United States State Supreme Court (California)
    • August 18, 1950
    ...391, 392, 157 A. 676; Van Slyke v. Van Slyke, 186 Mich. 324, 330, 152 N.W. 921; Bowen v. Fink, D.C., 34 F.Supp. 235; Krause v. Krause, 282 N.Y. 355, 360, 26 N.E.2d 290; Brown v. Brown, 242 App.Div. 33, 272 N.Y.S. 877, affirmed 266 N.Y. 532, 195 N.E. 186; Chapman v. Chapman, 224 Mass. 427, 4......
  • Wiesenfeld v. State of NY, No. 79 Civ. 0106.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 9, 1979
    ...of aliens). 16 See, e. g., N.Y.Fam.Ct. Act §§ 412, 413 (McKinney 1975); N.Y.Dom.Rel.Law § 236 (McKinney 1977); Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290 (1940); Gratt v. Gratt, 202 Misc. 835, 116 N.Y.S.2d 380 (Sup.Ct.1952). That the wife is not a public charge and is living in the same ......
  • DiRusso v. DiRusso, V--A
    • United States
    • New York Supreme Court
    • January 24, 1968
    ...court (and wholly apart from any estoppel against plaintiff which could not in any event validate defendants' marriage, Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290; see Note: 36 St. John's L.R. 126, 142; cf. Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J.......
  • Kazin v. Kazin
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1979
    ...; Fox v. Fox, 247 Ark. 188, 444 S.W.2d 865 (Sup.Ct.1969); Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19 (Sup.Ct.1952); Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290 (Ct.App.1940); Clagett v. King, 308 A.2d 245 (D.C.App.1973); Oakley v. Oakley, 30 Colo.App. 292, 493 P.2d 381 (Ct.App.1971), Ce......
  • Request a trial to view additional results

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