Phillips v. Phillips

• Decision Date: 15 October 1958
• Parties: Ethel PHILLIPS, Plaintiff, v. Gilbert L. PHILLIPS, Defendant.
• Court: New York Supreme Court

Page 475

180 N.Y.S.2d 475

15 Misc.2d 884

Ethel PHILLIPS, Plaintiff, v. Gilbert L. PHILLIPS, Defendant.

Supreme Court, Special and Trial Term, New York County, Part III.

Oct. 15, 1958.

James Dubin, New York City (Benedict Ginsberg, New York City, of counsel), for plaintiff.

Lester Alan Baron, New York City (Samuel Robert Weltz and Milton B. Franklin, New York City, of counsel), for defendant.

MATTHEW M. LEVY, Justice.

The parties were married to each other in New York in February, 1952. This is the second marriage for each of them. The present suit is for a separation by wife against husband. It is based upon the defendant's alleged cruel treatment of the plaintiff and his alleged failure adequately to provide for her. In his answer, the defendant denied the allegations of cruelty and non-support, and interposed a counterclaim for annulment of his marriage to the plaintiff on the ground that at the time of their marriage the plaintiff was still married to another, from which other she had not been validly divorced. The case was fully tried before me in respect of all of its aspects, but, since a valid marriage to the defendant is a prerequisite to the maintenance of plaintiff's action for separation, I shall consider first the problems presented by the defendant's counterclaim.

On March 31, 1950, the plaintiff obtained a divorce from her then husband, one Moss, in the Superior Court of Richmond County, State of Georgia, representing herself to the Georgia court as having been a resident of that state for more than one year prior to the institution of her action. Actually, the plaintiff was a resident of New York at the time. She spent only a few days in Georgia, having gone there for the purpose of obtaining a divorce and for no other, and she did not establish a residence in Georgia. Her husband, Moss, subjected himself to the personal jurisdiction of the Georgia court in that suit by duly acknowledging service and appearing in the Georgia action through an attorney, who, in pursuance of instructions from Moss, denied the charges of his wife's complaint, but did not contest the action for divorce. The record of the Georgia court indicates that the final decree of total divorce was granted the plaintiff against Moss on March 31, 1950. Subsequent thereto, Moss took unto himself another spouse.

The Federal Constitution (art. IV, § 1) provides that 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. * * *' Recently, several United States Supreme Court cases have dealt with 'the controlling effect of the clause on state proceedings subsequent to divorce decrees in other states' (Johnson v. Muelberger, 340 U.S. 581, 585, 71 S.Ct. 474, 477, 95 L.Ed. 552), and, in order to arrive at a proper determination of the issue at bar, I find it necessary, at the outset, to study the full purport of the principal rulings.

First is the first decision in Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279. There, it was held that the unquestioned domicile in a state of one party to the divorce enabled that state to exercise its power over the marital relationship, and that the divorce granted must be respected in all other states, although the other spouse had neither appeared nor had been served with process in the rendering state and although the recognition of such a divorce was contrary to the public policy of any other state. In the second Williams case, however, a sister state was held free to determine whether there was such domicile in fact as to give the divorce court jurisdiction to render an ex parte judgment of divorce (Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577). On the other hand, in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1091, 1097, 92 L.Ed. 1429, the Court held that its decision in Williams II did not permit such collateral attack on the decree of the court of the rendering state on jurisdictional grounds 'where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.' 334 U.S. at pages 351, 352, 68 S.Ct. at page 1091; see also, Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. In Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, supra, the court extended these principles to encompass third-party attack, and held that not only would the Full Faith and Credit Clause bar a party who had been personally served or who had entered a personal appearance from collaterally attacking the decree, but also ruled (340 U.S. at page 587, 71 S.Ct. at page 478) that a 'stranger' to the proceedings [in the rendering state] would be similarly barred if 'the party attacking would not be permitted to make a collateral attack in the courts of the granting state.' In its summation of the law at the end of its opinion the court said that 'When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it can not be attacked by them anywhere in the Union.' 340 U.S. at page 589, 71 S.Ct. at page 479. In Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (where a second husband attacked the divorce decree his wife had obtained from her prior husband) the Court made clear that Williams II had not been overruled, and that, if the spouse against whom the divorce decree had been obtained had neither appeared nor been served in the rendering state, the issue of domicile could be reopened; however, the court held that, if there had been such appearance, then the second husband could not collaterally attack the decree obtained against the prior husband 'unless' the rendering state 'applies a less strict rule of res judicata to the second husband than it does to the first.' 342 U.S. 126, at page 128, 72 S.Ct. 157 at page 159. Thus, under Johnson v. Muelberger, where there was an appearance (as in the instant case), third-party attack by a 'stranger' is precluded if it would not have been permitted by the rendering state; and, by virtue of Cook v. Cook, a subsequent spouse is included within the classification of 'stranger'.

I hold, therefore, that the defendant in the case at bar--the plaintiff's second spouse--cannot, in the instant action, attack the decree that his wife had obtained from her former husband in the State of Georgia, unless the Georgia courts would permit such an attack by the defendant in Georgia. Although the principle of the rule thus enunciated--that is, that collateral attack upon the Georgia decree would be permitted here only if Georgia would permit such an attack in that state--appears to be quite simple, the evidence adduced at the trial before me and the arguments presented by counsel indicate that its application in the case at bar is of some difficulty.

When a fraud is perpetrated upon the court of another state so as to induce that court in a divorce action to exercise its jurisdiction over a matrimonial status non-existent in that state and over persons who are in fact non-domiciliaries thereof, the parties are by hypothesis domiciled elsewhere, and they will normally return to the state of their actual residence after acquiring the divorce. If either or both of the parties subsequently remarry and the validity of their prior divorce comes into question, the forum of litigation and determination will rarely be in the courts of the state which rendered the divorce decree. The result is a dearth of precedential authority as to exactly how the divorcing jurisdiction would rule if an attack were made upon the divorce rendered in that state. And it is clear that it is the law of Georgia which we must examine, and not the law of New York or of any other jurisdiction, to determine whether the defendant under the existing circumstances may successfully attack the divorce decree his wife obtained against her prior husband in the State of Georgia.

In Re Bourne's Estate, Sur., 142 N.Y.S.2d 777, 780, reversed on other grounds 2 A.D.2d 896, 157 N.Y.S.2d 189, the court was considering an attempt to impeach a Florida decree. The court stated that 'We should also bear in mind that any New York case construing the internal law of a State other than Florida, for instance, Nevada, where a divorce was obtained that is subsequently sought to be collaterally attacked, would have no relevancy in this proceeding.' This view is supported by Bruce v. Bruce, Sup., 129 N.Y.S.2d 454, where a wife in New York sought to declare invalid a Georgia divorce decree which her husband had obtained against her, and the court, citing Johnson v. Muelberger, stated at page 456: 'Since the plaintiff here submitted to the Georgia jurisdiction through the execution of the notice of appearance, which was filed in the action, and the Georgia decree rests thereon, her remedy as to the decree's validity based on the husband's alleged non-residence, must be relegated to the Georgia Court for proper determination in accordance with the Full Faith and Credit Clause of the Federal Constitution, * * *'. That is not to say, if there were any authoritative New York cases indicating what the Georgia law is, that I should not be guided by them. What I do say is that I am unable to follow counsel when they fail to note that the New York decisions relied upon by them, and in which was discussed the problem of ascertaining and interpreting the law of the divorce state under the rule of Johnson v. Muelberger, supra, all involved Florida divorces and therefore the courts, in arriving at these decisions, were able to rely upon the authorities cited in the Johnson case, which involved a Florida divorce; and, in addition, the courts in those cases could rely upon the Johnson opinion itself...