De Pena v. De Pena

• Decision Date: 18 March 1969
• Citation: 298 N.Y.S.2d 188,31 A.D.2d 415
• Parties: Haydee DE PENA, Petitioner-Respondent, v. Freddy DE PENA, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 188

298 N.Y.S.2d 188

31 A.D.2d 415

Haydee DE PENA, Petitioner-Respondent, v. Freddy DE PENA, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

March 18, 1969.

Leon Fuhrer, New York City, of counsel (Goldstein & Goldstein, New York City), for appellant.

Leonard Koerner, New York City, of counsel (Stanley Buchsbaum, New York City, with him on the brief; J. Lee Rankin, Corporation Counsel), for petitioner-respondent.

Before EAGER, J.P., and TILZER, NUNEZ, RABIN and MACKEN, JJ.

EAGER, Justice Presiding:

This is a support proceeding instituted in Family Court and the respondent-appellant appeals from an order of that court requiring him to pay a weekly sum for the support of the petitioning wife and a child of the parties. The appellant, claiming to be a domiciliary of the Dominican Republic, sought a dismissal of the proceeding on the ground that a divorce decree procured there had dissolved the marriage of the parties and limited his responsibilities to a provision therein for the support of the child. The Family Court, however, refused to accord recognition to the foreign divorce decree and rendered the order of support.

Concededly, the parties were originally domiciliaries of the Dominican Republic. The appellant first came to the United States in 1959 and, although he returned to the Dominican Republic a year later, he came back here on June 19, 1962. Since then he has continuously resided in New York City although he remains a citizen of the Dominican Republic. He insists that he does not intend to become a citizen or domiciliary of the United States but that he will return to the Dominican Republic.

The petitioner came to the United States with her aunt in August, 1962. She and the appellant were married in the Dominican Consulate in New York City on November 8, 1963. As husband and wife, they established and maintained their residence here and their child was born here in September 1964.

The parties separated in November, 1964, but the appellant-husband remained here. In January or February, 1965, he instituted a divorce proceeding in the Dominican Republic and the petitioner prepared to defend the same. However, she did not appear in the proceeding and it was either stayed or discontinued. Thereafter, in July, 1965, the appellant commenced a second action for divorce in the Dominican Republic. His appearance there in the action was by an attorney and he never left this country. A decree of divorce was rendered in his favor in this second action, divorcing the parties on the ground of 'incompatability of characters'. Process was not personally served upon petitioner within the Dominican court's jurisdiction and she did not appear in the action. Thus, the court did not acquire personal jurisdiction over her.

The petitioner and her son have never left the United States and although she is still a citizen of the Dominican Republic, she intends to remain here and to become a United States citizen. When petitioner's husband abandoned her, she had the right to establish her own domicile (Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 351, 153 N.Y.S.2d 1, 7, 135 N.E.2d 553, 557, affd. 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456), and under traditional rules, she has become a domiciliary of New York. Her Dominican citizenship is no bar to establishing a New York domicile. (17 N.Y.Jur., Domicil and Residence, §§ 2, 3, 30.) The trial court found that the petitioner is a domiciliary here and we approve that finding.

Under the circumstances and with due regard to the rights of the petitioner and the child as domiciliaries of the State, the courts here "are under no constitutional compulsion to give full faith and credit" to the divorce decree rendered by the court of the Dominican Republic. (Schoenbrod v. Siegler, 20 N.Y.2d 403, 408, 283 N.Y.S.2d 881, 884, 230 N.E.2d 638, 640, citing cases.) Frequently, we do give effect to a foreign country judgment "as a matter of comity" (Schoenbrod v. Siegler, Supra; Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 74, 262 N.Y.S.2d 86, 91, 209 N.E.2d 709, 712, 13 A.L.R.3d 1401), but recognition of such a decree will be denied where the decree or the effect thereof contravenes the public policy of this State (Rosenbaum v. Rosenbaum, 309 N.Y. 371, 375, 130 N.E.2d 902, 903, 54 A.L.R.2d 1232).

Generally, the public policy of a state is to be determined in light of its laws 'whether found in the Constitution, the statutes or judicial records.' (See People v. Hawkins, 157 N.Y. 1, 12, 51 N.E. 257; Glaser v. Glaser, 276 N.Y. 296, 302, 2 N.E.2d 305, 307.) The matter of the determination of our policy with respect to the effect to be given a foreign country judgment is vested with the legislature and courts of the State. (See Borax' Estate v. C.I.R., 2 Cir., 349 F.2d 666, 670, cert. den. 383 U.S. 935, 86 S.Ct. 1064, 15 L.Ed.2d 852; Glaser v. Glaser, Supra, 276 N.Y. p. 301, 12 N.E.2d p. 306.) In the absence of a statutory provision or judicial precedent directly laying down our policy applicable to the circumstances of a particular case, we must look for guidance to the general spirit and purpose of our laws and the trend of our judicial decisions.

The policy to be adopted under the circumstances here is clearly revealed in our laws and decisions. Initially, we note that the decisions of courts of this State, for the benefit and welfare of its domiciliaries, have repeatedly refused to accord validity to an ex parte divorce decree rendered in a foreign country which lacked substantial contacts with the parties and the marital res (see, for example, Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60; Rosenbaum v. Rosenbaum, Supra; Vose v. Vose, 280 N.Y. 779, 21 N.E.2d 616; Querze v. Querze, 290 N.Y. 13, 47 N.E.2d 423.

The decision of Rosenstiel v. Rosenstiel (supra) does not apply to require that recognition be given to this particular Dominican Republic divorce decree. In Rosenstiel, the parties had voluntarily submitted themselves to the jurisdiction of the foreign court. The court held that recognition was 'to be given by New York to a matrimonial judgment of a foreign country based on grounds not accepted in New York, where personal jurisdiction of one party to the marriage has been acquired by physical presence before the foreign court; and jurisdiction of the other has been acquired by appearance and pleading through an authorized attorney although no domicile of either party is shown within that jurisdiction; and 'residence' has been acquired by one party through a statutory formality based on brief contact.' (See Rosenstiel, v. Rosenstiel, Supra, 16 N.Y.2d 64, p. 71, 262 N.Y.S.2d 86, p. 89, 209 N.E.2d 709, p. 711.) Here, however, neither of the spouses personally appeared before the foreign court, and In personam jurisdiction was not acquired quired over the defendant (petitioner here) in the foreign action.

In any event, in determining the policy to be followed here, we note that under the settled law of this State, the ex parte Dominican Republic decree does not affect the rights of the petitioner and her child to receive support from the appellant. Where a foreign court entertains a divorce action by a husband without acquiring In personam jurisdiction over the defendant wife, the decree rendered in the action will not be effective to cut off the obligation of the husband to support his wife. (See Estin v. Estin, 296 N.Y. 308, 73 N.E.2d 113, affd. 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412; Kreiger v. Kreiger, 297 N.Y. 530, 74 N.E.2d 468, affd. 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572.) Where, as here, the foreign court failed to acquire such jurisdiction, the court was 'as powerless to cut off the wife's support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been...