Lamb v. Lamb

• Decision Date: 22 December 1969
• Citation: 307 N.Y.S.2d 318,61 Misc.2d 1032
• Parties: Dolores LAMB * , Petitioner, v. Charles LAMB *, Respondent.
• Court: New York City Court

Page 318

307 N.Y.S.2d 318

61 Misc.2d 1032

Dolores LAMB ^*, Petitioner, v. Charles LAMB *, Respondent.

Family Court, City of New York, New York County.

Dec. 22, 1969.

Finkelstein & Robinson, by Miriam M. Robinson, New York City, for petitioner.

Mitchell Salem Fisher & Wang, by Mitchell Salem Fisher, New York City, for respondent.

ISIDORE LEVINE, Judge.

The petitioner herein seeks support from the respondent for herself and three children of the parties hereto based upon a ceremonial 'marriage' entered into between the parties in Connecticut on September 23, 1954. On that day respondent's 'prior' wife, Marjorie, was alive, but mentally incompetent, in an institution.

However, prior to that date, and on August 24, 1954 respondent obtained a unilateral Mexican divorce from Marjorie. Accordingly, petitioner claims that her subsequent marriage to respondent on September 23, 1954 was a legal marriage.

Respondent contends that his unilateral Mexican divorce from Marjorie without her consent (since she was incompetent, she could give none) was a complete nullity, and hence his subsequent 'marriage' to petitioner, while Marjorie was still alive, is a complete nullity.

Petitioner counters this argument by asserting that respondent is estopped from denying the invalidity of the Mexcian divorce since it was he who procured it, and secondly, that she was misled by respondent into believing that his Mexican divorce was valid and effective in dissolving his prior marriage to Marjorie, so as to enable him to be legally married to petitioner.

Relevant on this issue are the precise facts surrounding the securing of the Mexican divorce. The undisputed testimony adduced at the trial reveals that respondent (in the company of petitioner) went to Mexico City, not for the purpose of residing there, where he consulted a lawyer and where he signed papers for a divorce, which were mailed to Juarez, where the divorce decree was issued shortly thereafter. Respondent never went to Juarez nor appeared in any court in Juarez. (It is significant to note that Mexico City is a great distance away from Juarez, and that Mexico City and Juarez are in different states in Mexico). After signing the papers in Mexico City, respondent (with petitioner) returned shortly thereafter to New York where respondent resides and maintained his professional practice, and where he continues to reside and practice to the present day.

Several issues are now presented to the court.

1. Are the parties legally married because the respondent's Mexican decree was valid, and, if not, is the respondent estopped from denying the invalidity of his Mexican divorce?

2. If the parties are not legally married, are the three children illegitimate, and, if so, does the Family Court have the power to declare the legitimacy of the children for the purpose of support and for other purposes?

3. If the petitioner is not the legal wife of the respondent, is she entitled to any support for herself, and, if not, what is the proper amount for the support of the three children alone?

4. If the petitioner is found not to be the legal wife of the respondent, is her attorney entitled to counsel fees for services rendered in this case for her alone, as separated from services rendered on behalf of the children, and, if not, what is the proper amount of counsel fees for services rendered to the three children only?

The court will endeavor to answer these questions in the order hereinabove presented.

1. After a thorough and painstaking review of the legal authorities and precedents for the knotty issues presented herein involving, amongst other things, the serious and vexatious question of estoppel against a jurisdictional attack on a foreign decree of divorce, the court concludes, based upon the law and the facts as found herein, that the parties hereto are not legally married since at the time of their attempted marriage to each other on September 23, 1954, the respondent had a prior wife alive (Marjorie) between whom there was no legal divorce, since the Mexican divorce decree obtained by the respondent on August 24, 1954 against Marjorie was a complete nullity, and as such beyond the ability of the doctrine of estoppel to revive.

Decisive of the conclusion herein, albeit, a 4 to 3 decision, is the case of Rosenbaum v. Rosenbaum, 309 N.Y. 371, p. 376, 130 N.E.2d 902, p. 904, 54 A.L.R.2d 1232 (1955) where the court held '* * * this Mexican divorce action--a clear legal nullity under the allegations of plaintiff's complaint, And of no more validity than a so-called mail order divorce, from which we said 'no rights of any kind may spring', Caldwell v. Caldwell, supra, 298 N.Y. (146) at page 151, 81 N.E.2d (60) at page 63,--is controlled by valid precedent in our court.' (Italics, the court's)

Again, in the Rosenbaum case, supra, page 377, 130 N.E.2d page 904, the court stated 'If, in fact, defendant obtains a Mexican divorce and thereupon enters into a subsequent marriage, plaintiff need have no fear for her property rights and marital status under New York law.'

In the Rosenbaum case, supra, the court was called upon to find as a fact (since the issue was presented to the court on respondent's cross motion to dismiss plaintiff's complaint for an injunction against respondent's prosecution of his divorce action in Mexico) that defendant appeared in Mexico on November 5, 1954 solely for the purpose of signing divorce papers and not for the purpose of residing there, remaining at all times a resident and domiciliary of New York, wherein he continues to reside and practice his profession, and that he has been physically present here since November 7, 1954 (p. 374, 130 N.E.2d p. 902).

So too, in the case at bar, the court finds on the evidence that the respondent was in Mexico City for the purpose of signing divorce papers, preparatory to securing a divorce decree, not in Mexico City, but in Juarez, Mexico, an entirely different city and state, thereby making th divorce in the instant case, even more void, if such comparison be possible, than the divorce which was attempted to be secured in the Rosenbaum case. In addition, the court finds as facts, based upon the evidence, that the respondent herein did not appear in Mexico for the purpose of residing there, and remained at all times a resident and domiciliary of New York State to which he returned promptly and where he continues to reside and practice his profession, and that he has been physically present since his return from Mexico, except for vacation or business trips.

Another case holding that the husband was not estopped from asserting as a defense to an action for separation, the invalidity of a Mexican decree divorcing him from his former wife, is the case of Alfaro v. Alfaro, 7 N.Y.2d 949, 198 N.Y.S.2d 318, 165 N.E.2d 880 (1960), where the Court of Appeals unanimously affirmed the Appellate Division, 5 A.D.2d 770, 169 N.Y.S.2d 943 (1958), which by a three to two vote had upheld the trial court, which found that the Mexican court which purported to grant respondent a divorce from his former wife, was without jurisdiction, where the court found that although the respondent journeyed to Mexico he did not appear in person in the Mexican court and in addition, that prior to the decree the appellant knew or was advised that the decree would be invalid in New York (see recitation of facts and court findings in the dissenting opinion in the Appellate Division, supra). So, too, in the case at bar, the court finds by the overwhelming and wholly credible evidence adduced at the trial that the petitioner herein knew and was advised that the respondent's purported divorce decree from his former wife, Marjorie, would be and was invalid in New York.

In the instant case petitioner urges upon the court that respondent should be estopped from denying the invalidity of his Mexican divorce from Marjorie, and cites in support of her position the case of Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290. However, the distinction between that case, involving a Nevada divorce, and the case at bar involving a Mexican divorce, is clearly stated in the case of Caldwell v. Caldwell, 298 N.Y. 146, at p. 149, 81 N.E.2d 60, at p. 62 (1948) where the Court of Appeals unanimously stated:

'We think that the rule of quasi-estoppel in the Krause case, supra, is not applicable here. * * * We held that the Nevada decree would not be recognized in this State and that the subsequent marriage to plaintiff by defendant was void because of his incapacity to enter into a valid marriage but that having himself procured the Nevada decree he would not be permitted to assert its invalidity so as to avoid an obligation to support the plaintiff wife whom he had married on the strength of his Nevada decree.'

In analyzing the rationale for permitting estoppel in sister state divorce decrees, while denying it in Mexican decrees, the Caldwell decision went on to state (p. 150, 81 N.E.2d p. 62):

'* * * The procurer of the sister State divorce in order to attack it, must attempt to establish affirmatively in our courts that he succeeded in perpetrating a fraud upon the court of that sister State. To refuse to permit that is not unreasonable but is consonant with justice.

'The reason for that rule vanishes when we have presented to us a situation where two persons attempt to confer jurisdiction upon a court of a foreign nation by means of the execution of powers of attorney to counsel residing there * * *. This is the device which results in what we have come to denominate 'a mail order divorce.' There is not even the slightest semblance or color of jurisdiction justifying action by a court. The spouses have never submitted themselves to nor invoked the jurisdiction of a court of the foreign nation as we understand those terms. They violated our statute embodying our public policy. Domestic Relations Law, § 51. Their collusive agreement and conduct may not be the...