Maxim v. Maxim

• Decision Date: 22 December 1952
• Citation: 203 Misc. 610
• Parties: "Alice Maxim", Petitioner,<BR>v.<BR>"Leonard Maxim", Respondent.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[*]</A></SUP>
• Court: New York Family Court

203 Misc. 610

"Alice Maxim", Petitioner,

v."Leonard Maxim", Respondent.^[*]

December 22, 1952.

Edward L. Mollis for petitioner.

Arthur L. Gould for respondent appearing specially.

SICHER, J.

On July 14, 1952, petitioner filed in this court a standard form of petition alleging respondent's failure since about July 9, 1949, to provide fair and reasonable support for petitioner as his wife and their two young children according to his means and earning capacity and praying "for such an Order of Support, directed to said Respondent, as shall be deemed to be fair and reasonable, and for such other and further relief as the law provides."

Thereupon a summons was duly issued pursuant to Family Court Rule IV of Domestic Relations Court of the City of New York (Bender's Court Rules [1st ed.], p. 365). But on the July 18, 1952, return day respondent did not attend, although concededly he had personally received such summons in New York City on July 14, 1952. Instead, he departed for Oklahoma on July 15th, and on the return day an attorney appeared in his behalf specially and solely for the purpose of moving to vacate the summons and dismiss the proceeding on grounds of alleged immunity from service and lack of subject matter jurisdiction of this court.

By stipulation of counsel disposition has been deferred pending submission of affidavits and briefs and my examination of the Bronx County Clerk's entire file in the hereinafter-described separation action.

As gathered from the affidavits, briefs and correspondence and that separation action file the following facts are undisputed; only the legal conclusions therefrom are still the subject of controversy.

The parties duly married in New York City on December 1, 1945, and became the parents of the two children included as dependents in the petition, namely, "Samuel" (born July 10, 1946) and "Dorothy" (born November 27, 1948).

From their marriage until at least July, 1950, both parties resided continuously in New York City.

Petitioner and the children have continuously since resided, and are still residing, in New York City.

Respondent remained in New York City until the latter part of April or early part of May, 1951, when he went to Oklahoma City, Oklahoma, where he became employed originally at a salary of $50 a week and since January, 1952, at least $55 a week.

He has not been in New York City since the Spring of 1951, except for occasional short visits to his parents and children, and received the afore-mentioned summons during one such visit on July 14, 1952.

On August 22, 1951, petitioner had instituted in the Supreme Court, Bronx County, an action for a separation under articles 69-70 of the Civil Practice Act; the summons therein was duly served on respondent on August 23, 1951, in Oklahoma City, Oklahoma, pursuant to an appropriate order under the Civil Practice Act; upon respondent's failure to appear or answer the matter was referred to Official Referee LAPHAM, who recommended judgment for the plaintiff (petitioner herein) and a total award of $30 a week for the maintenance of the wife and the two children; and a default judgment to that effect was entered in the Supreme Court, Bronx County, on February 21, 1952.

That judgment is in conventional form, granting petitioner a separation from defendant's bed and board forever, because of cruelty, abandonment, and failure or refusal adequately to support her and the infant issue of the marriage; it grants the mother custody of the two children and also $10 a week as permanent alimony for herself and $20 a week for the support of the two children, from February 21, 1952.

Thereafter, on April 9, 1952, respondent moved to strike out from that judgment those money provisions on the ground that the Supreme Court had not acquired in personam jurisdiction over respondent in the separation action. Such motion was granted by Supreme Court Justice VALENTE, and on May 8, 1952, he entered an order reading, in part:

"and it appearing that at the time of the commencement of this action the defendant was a resident and domiciliary of the State of Oklahoma and not a resident of the State of New York. * * *

"`Ordered that said motion be and the same is hereby granted, and it is further ordered, adjudged and decreed that the aforesaid default decree of separation herein entered in the office of the Clerk of the County of Bronx on the 21st day of February, 1952 be and the same is hereby modified by striking and vacating therefrom the last paragraph thereof'". (I.e. the above-described money provisions.)

The granting of that motion was explained in the following memorandum published sub nom. Markman v. Markman (N. Y. L. J., May 5, 1952, p. 1793, col. 5).

"Motion by defendant to modify the decree by striking out the provision directing the payment of alimony is granted. The defendant was served in Oklahoma and did not appear, answer or defend. There is no proof of facts to overcome his allegations of non-residence. (Reschofsky v. Reschofsky, 272 App. Div. 694). Settle order."

Reschofsky v. Reschofsky (supra) held that in an action for separation against a nonresident defendant who is served by publication, although the court may render a default judgment effectively dissolving the marital status, it may not award alimony or a money judgment against the defendant where he does not appear generally, in the absence of a prior seizure of his property in this State. The absent defendant may accept the status decreed without binding himself to pay money so adjudged.

Respondent's moving affidavit had been verified on April 7, 1952, at Oklahoma City, Oklahoma; it recites that he had been served with the summons and complaint in the separation action at his then residence in Oklahoma City, Oklahoma, on or about August 23, 1952; and that "neither any answer nor any appearance was filed on my behalf herein, and consequently the decree was entered by default. For the purposes of this application I am not interested in the merits of this action and any reference to any fact will be made only insofar as the question of jurisdiction is affected."

That New York Supreme Court judgment of separation stands unimpaired by the hereinafter-described June 28, 1952, Oklahoma constructive service default interlocutory decree of divorce, procured by respondent, insofar as said New York Supreme Court judgment adjudicated petitioner's right to a legal separation on grounds of respondent's cruelty, abandonment and nonsupport, prior to February 21, 1952, although denuded of its original provisions for support, and now wholly silent in respect of respondent's money obligations towards his wife and children. Thus, subdivision 2 of section 137 of the New York City Domestic Relations Court Act is therefore inapplicable. The petition will lie and is deemed filed under subdivisions 1-4 of section 92 and subdivision 1 of section 101 and paragraphs (b) and (c) of subdivision 1 of section 103 of the New York City Domestic Relations Court Act.

Accordingly, it is the "law of the case" in the instant proceeding that respondent abandoned petitioner and failed to support her or the children adequately during the period embraced and adjudicated by that judgment of separation, and that the facts therefore bring the parties within the residential jurisdiction requirements of paragraph (c) of subdivision 1 of section 103, if not also paragraph (b) of section 103 of the Domestic Relations Court Act of the City of New York, reading, insofar as pertinent: "§ 103. Residential jurisdiction. 1. A husband, father * * * may be required to furnish support or may be found guilty of non-support, as provided in the two preceding sections, if, * * * (b) he * * * is not residing or domiciled in the city but is found therein, provided that the petitioner is so residing or domiciled at the time of the filing of the petition for support and is so residing or domiciled at the time of the issuance of the summons or warrant; or (c) he * * * is neither residing nor domiciled nor found in the city but prior to the time of the filing of the petition for support and, while so residing or domiciled, he * * * shall have failed to furnish such support or he shall have abandoned his wife or he * * * shall have abandoned his * * * children * * * and thereafter shall have failed to furnish support, provided that the petitioner is so residing or domiciled at the time of the filing of the petition for support."

On June 28, 1952, respondent caused to be entered in the District Court of Oklahoma City, Oklahoma, a constructive service default decree of divorce against petitioner, after service of the summons and complaint by publication under the laws of Oklahoma but without an appearance of the defendant (petitioner herein) or answer in that action.

Said decree purports to grant to respondent a provisional (interlocutory) divorce on the ground that the defendant in the action (petitioner herein) had "abandoned and deserted this plaintiff" (respondent herein) "more than one year next preceding the filing of his petition". And that Oklahoma decree further provides: "IT IS FURTHER ORDERED by the court, that the care, custody and control of the minor children of the parties, `Samuel' and `Dorothy', shall be confided to the defendant, subject to the right of reasonable visitation by plaintiff at all possible times; and, that the plaintiff shall pay to the defendant the sum of $40 per month for the care and maintenance of said minor children, until they shall have attained their legal majority, or until the further order of this court."

However, it should be observed, such June 28, 1952, decree also expressly provides that the part granting to plaintiff (respondent herein) a divorce from defendant (petitioner herein) "shall not become absolute and take effect until the expiration of six (6) months from the date hereof." That is, such provision of the decree is interlocutory until December 28, 1952, and therefore peti...