Nicit v. Nicit

• Decision Date: 23 December 1994
• Citation: Nicit v. Nicit, 621 N.Y.S.2d 1000, 210 A.D.2d 987 (N.Y. App. Div. 1994)
• Parties: Anna Marie NICIT, Respondent, v. John J. NICIT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1000

621 N.Y.S.2d 1000

210 A.D.2d 987

Anna Marie NICIT, Respondent, v. John J. NICIT, Appellant.

Supreme Court of New York, Appellate Division, Fourth Department.

Dec. 23, 1994.

Sam C. Bonney, Waterloo, for appellant.

Harris, Beach and Wilcox by David Boysen, Rochester, for respondent.

MEMORANDUM:

Supreme Court properly denied respondent's motion for summary judgment dismissing the petition. The record supports the court's determination that petitioner had acquired a bona fide domicile in Alabama at the time the divorce action in that State was commenced (see, Wilke v. Wilke, 73 A.D.2d 915, 423 N.Y.S.2d 249; cf., Manasseri v. Manasseri, 121 A.D.2d 697, 504 N.Y.S.2d 140). The evidence submitted by respondent is insufficient to support his allegation of lack of domicile (see, 48 NYJur2d, Domestic Relations, § 1474, at 415). The instant proceeding is not barred by res judicata (see, Nikrooz v. Nikrooz, 167 A.D.2d 334, 335, 561 N.Y.S.2d 301; 48 NYJur2d, Domestic Relations, § 1465, at 399). We reject respondent's contention that petitioner is precluded from maintaining this proceeding on the ground that she obtained the foreign divorce judgment (see, Domestic Relations Law § 236[B][2], [5]; Mattwell v. Mattwell, 194 A.D.2d 715, 600 N.Y.S.2d 98).

Order unanimously affirmed with costs. (Appeal from Order of Supreme Court, Seneca County, Harvey, J.--Equitable Distribution.)

DENMAN, P.J., and GREEN, BALIO, CALLAHAN and BOEHM, JJ., concur.