Magowan v. Magowan

• Decision Date: 06 April 1967
• Citation: 19 N.Y.2d 296,279 N.Y.S.2d 513
• Parties: , 226 N.E.2d 304 Rue MOGOWAN, Appellant, v. Edward S. MAGOWAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 513

279 N.Y.S.2d 513

19 N.Y.2d 296, 226 N.E.2d 304

Rue MOGOWAN, Appellant, v.Edward S. MAGOWAN, Respondent.

Court of Appeals of New York.

April 6, 1967.

Richard Ives Rudell and Sidney H. Zuckerman, New York City, for appellant.

Laszlo Kormendi, New York City, for respondent.

PER CURIAM.

The plaintiff wife brought this suit against her second husband for a separation and he counterclaimed for an annulment on the ground that she was still married to another at the time she purportedly wed him, the defendant, in 1957.More specifically, the defendant urges that the Alabama decree of divorce which the plaintiff obtained in 1955 from her first husband was jurisdictionally void.For her part, the plaintiff asserts that that decree is entitled to full faith and credit in this State under the Federal Constitution.(U.S.Const., art. IV, § 1.)

It is settled that when, as in the present case, both parties to an out-of-state divorce appeared in those divorce proceedings, a stranger to the decree may collaterally attack it in our courts only if he establishes that the rendering State permits such an attack.(See, e.g., Weisner v. Weisner, 17 N.Y.2d 799, 271 N.Y.S.2d 252, 218 N.E.2d 300;Goldsmith v. Goldsmith, 19 N.Y.2d 710, 279 N.Y.S. 172, 225 N.E.2d 879;Johnson v. Muelberger, 340 U.S. 581, 587, 71 S.Ct. 474, 95 L.Ed. 552;Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146.)The defendant before us has failed to meet the burden thus imposed upon him.Since '(t)he alleged defect in the jurisdiction of the Alabama court does not appear upon the fact of (the) decree' challenged by the defendant, it is not clear, under Alabama law, whether the defendant being a stranger to that decree, has standing to attack it.(Weisner v. Weisner, 17 N.Y.2d 799, 802, 271 N.Y.S.2d 252, 253, 218 N.E.2d 300, 301, supra;seeAiello v. Aiello, 272 Ala. 505, 509--511, 133 So.2d 18.)In this situation, we must accord full faith and credit to the decree.It may be attacked by the defendant, if at all, only in the courts of Alabama.

Accordingly, the defendant's counterclaim for an annulment must, as the case now stands, be dismissed and, there being no impediment to the wife's institution of the present suit for separation, the trial court is required to consider the merits of such action.However, if the defendant proceeds in Alabama and there succeeds in vacating the decree divorcing the plaintiff from her first husband, he will then be privileged to...