Marum v. Marum

• Decision Date: 28 July 1959
• Citation: 190 N.Y.S.2d 812,8 A.D.2d 975
• Parties: Emilie A. MARUM, Respondent, v. Ferdinand H. MARUM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 812

190 N.Y.S.2d 812

8 A.D.2d 975

Emilie A. MARUM, Respondent, v. Ferdinand H. MARUM, Appellant.

Supreme Court, Appellate Division, Second Department.

July 28, 1959.

Selkowe, Johnson, Zimbalist & Romanoff, New York City, for appellant, Bernard R. Selkowe, New York City, of counsel.

Hyman Asheroff, Franklin Square, for respondent.

Before NOLAN, P. J., and WENZEL, HALLINAN, MURPHY and UGHETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a separation, the appeal is from a judgment granting respondent a separation and awarding alimony and counsel fees. Judgment modified on the law and the facts by striking therefrom the first and second ordering paragraphs and by substituting therefor a provision dismissing the complaint. As so modified, judgment unanimously affirmed, without costs. Finding of fact numbered IV is modified by deleting therefrom the words 'However, I find that the defendant became a resident of Mexico for the time limit required by the Mexican law in order to obtain his divorce.' Finding of fact numbered V is modified by deleting therefrom the words 'except for the limited period of residence required by the laws of Mexico in order to obtain the divorce.' Finding of fact numbered VI is modified by adding thereto the words 'except in New York State'; finding of fact numbered 18 is modified by deleting therefrom the words '(except that defendant became a resident of Mexico for the time limit required by Mexican law)', and the purported finding the appellant is estopped from denying the efficacy of the Mexican decree of divorce is modified by inserting the word 'not' between the word 'is' and the word 'estopped'.

The parties hereto, both of whom were domiciled in this State, purported to enter into a ceremonial marriage in the State of Connecticut. Prior thereto, appellant, who had previously married one Lily Marum, had instituted a divorce action in Mexico against her, in which she was not served with process in that jurisdiction, and in which she did not appear. The learned trial court found, on sufficient evidence, that appellant appeared personally and testified in the Mexican action and that he did not intend to relinquish his residence in New York, nor to maintain a permanet residence in Mexico. The court refused to find that the Mexican decree of divorce, obtained by appellant, was valid, but concluded that appellant was estopped from denying its efficacy. There was no finding that appellant ever acquired a domicile in Mexico, nor was there any evidence which would have supported such a finding if one had been made. Under the circumstances, there was not the slightest semblance or color of jurisdiction in the Mexican court, and appellant was therefore not estopped to deny the validity of its decree (Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60; Alfaro v. Alfaro, 5 A.D.2d 770, 169 N.Y.S.2d 943; cf. Rosenbaum v. Rosenbaum, 309 N.Y. 371, 376, 130 N.E.2d 902, 903, 54 A.L.R.2d 1232). The Mexican decree may not therefore be recognized in the courts of this State.

Neither would it have been recognized in the State of Connecticut (cf. Poltz v. Poltz, 15 Conn.Supp. 75; Blackwell's Application for Change of Name, 5 Conn.Supp. 190; Chetelat v. Chetelat, 4 Conn.Supp. 209; Ringhoffer v. Ringhoffer, 1 Conn.Supp. 35; State v. Cooke, 110 Conn. 348, 148 A. 385; Rice v. Rice, 134 Conn. 440, 58 A.2d 523, affirmed 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957).

Respondent's contention that appellant did not present evidence to establish that, at the time of his marriage to Lily Marum, she was free to marry him (...