Manasseri v. Manasseri

• Decision Date: 30 June 1986
• Citation: Manasseri v. Manasseri, 504 N.Y.S.2d 140, 121 A.D.2d 697 (N.Y. App. Div. 1986)
• Parties: Maria MANASSERI, Respondent, v. Anthony MANASSERI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 140

504 N.Y.S.2d 140

121 A.D.2d 697

Maria MANASSERI, Respondent, v. Anthony MANASSERI, Appellant.

Supreme Court, Appellate Division Second Department.

June 30, 1986.

Murray Ramson, New York City, for appellant.

Ressa, Nappi & Weinig, Port Washington (Harvey Weinig of counsel), for respondent.

Before GIBBONS, J.P., and WEINSTEIN, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action for a separation and other ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Lockman, J.), entered July 8, 1985, following a hearing, which declared that he was not properly domiciled in Nevada at the time he commenced his action for divorce in that state, and directed that the plaintiff's motion for pendente lite relief be resubmitted to Special Term.

Order affirmed, without costs or disbursements.

The plaintiff wife and the defendant husband were married in New York on June 17, 1962, and they resided together in this State until January, 1982, when the defendant left the marital abode. Shortly thereafter, the defendant commenced a divorce action in the Supreme Court, Queens County, and the plaintiff interposed counterclaims seeking a divorce as well. The action was tried before Justice Miller, and by judgment dated October 9, 1984, the defendant husband's complaint was dismissed for failure of proof. The wife's counterclaims were voluntarily withdrawn.

One week later, on October 16, 1984, the defendant, with two suitcases and his golf clubs, moved to Las Vegas, Nevada, where he was to begin a new job which had been procured the previous day. Within two to three weeks of his arrival in Nevada, he consulted an attorney with reference to the possibility of commencing a new divorce proceeding in Nevada. Approximately seven weeks after the defendant moved to Nevada, on December 6, 1984, the plaintiff was personally served with process in New York in a Nevada action in which the defendant again sought a divorce. The plaintiff did not appear in that action, and a Decree of Divorce was rendered on December 28, 1984.

The plaintiff however had in the interim attempted to commence her own separation action in New York, but efforts to serve the defendant in between September and November, 1984 were unavailing. On November 21, 1984, the plaintiff obtained an order permitting service to be made on the defendant in Nevada pursuant to CPLR 308(2), and said service is alleged to have been made on November 29, 1984.

The plaintiff then moved for pendente lite child support, maintenance and other ancillary relief, and the defendant cross-moved to dismiss the plaintiff's complaint on the ground, inter alia, that the Nevada divorce decree precluded the instant action. Initially, the cross motion was granted; however, after a hearing, upon reargument, the court found that the defendant was not properly domiciled in Nevada when he commenced his divorce action there, and directed that the motion and cross motion be resubmitted to Special Term. The defendant appeals from this order, claiming that the hearing court erroneously allocated the burden of proof on the issue of domicile, and that the plaintiff failed to establish that he was not properly domiciled in Nevada when he commenced the Nevada proceedings.

While we agree that the hearing court erroneously placed the burden of proof on the defendant, we find that the...