Presbrey v. Presbrey

• Decision Date: 05 November 1958
• Parties: Natalie M. PRESBREY, Plaintiff-Appellant, v. Oliver M. PRESBREY and Martha Rountree, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 788

179 N.Y.S.2d 788

6 A.D.2d 477

Natalie M. PRESBREY, Plaintiff-Appellant, v. Oliver M. PRESBREY and Martha Rountree, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Nov. 5, 1958.

Daniel F. Scanlan, New York City, for appellant.

Philip L. Leit, New York City, for respondents.

Before BOTEIN, P. J., and BREITEL, FRANK, VALENTE, and STEVENS, JJ.

BREITEL, Justice.

A first wife sues her husband and the woman he has remarried on the ground that the divorce the husband obtained from the first wife in Mexico was a nullity and that the remarriage to the second wife was likewise a nullity. Plaintiff wife appeals from dismissal on motion of her second amended complaint for legal insufficiency and on the ground that there is existing a prior final judgment which disposes of the merits raised by the pleading.

The complaint contains two causes of action. One is for a declaratory judgment with respect to the nullity of the divorce and the remarriage; and the other is for annulment of the remarriage. The complaint also prays for incidental injunctive relief.

Plaintiff wife and defendant Presbrey were married in 1930. On March 12, 1952, she started a separation action on the ground of abandonment. The couple entered into a separation agreement on July 3, 1952, and, thereafter, on November 3, 1952, a judgment of separation was rendered in favor of plaintiff wife in the Supreme Court, New York County, which incorporated the terms of the separation agreement. On June 13, 1952, prior to the separation agreement and the entry of a judgment of separation, defendant Presbrey procured a Mexican divorce from plaintiff. The wife alleges that she had no knowledge of this proceeding and, admittedly, she was never served nor did she appear. Defendants concede that the Mexican divorce is without validity. On June 18, 1952, defendant Presbrey married defendant Martha Rountree. This too was still before the judgment of separation--indeed, even before the execution of the separation agreement. Special Term, relying primarily on Garvin v. Garvin, 306 N.Y. 118, 116 N.E.2d 73, held that the action would not lie and dismissed the entire complaint.

The first wife makes no serious attack upon the order in so far as it dismissed the cause of action for a declaratory judgment. Controlling is the Garvin case, supra. There a first wife sued her husband and his second wife, and asked for a declaratory judgment in the usual form with incidental injunctive relief. As in this case, the first wife in the Garvin case had obtained a separation judgment subsequent to the allegedly null Virgin Islands divorce and the null remarriage. As will be seen, it is significant that the remarriage, as here, was a void one and not a voidable one. Her pleading was dismissed on motion on the ground that a declaratory judgment was unnecessary, the marital status of the plaintiff wife having been fully and conclusively determined by the prior separation judgment.

Accordingly, that branch of the motion on which the first cause of action was dismissed was properly granted.

With respect to the second cause of action seeking the annulment of the remarriage to the second wife, plaintiff wife in this case invokes Section 1134 of the Civil Practice Act which entitles a first spouse to obtain the annulment of a void remarriage to another. In this connection plaintiff wife asserts that a court is without discretion to decline an annulment otherwise authorized by the statute.

Section 1134, upon which plaintiff wife relies, reads as follows:

'An action to annul a marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the former husband or wife.'

The question is whether the statute mandates upon the court entertainment of the action and, in a pro forma case, the granting of the relief demanded, even though the wife's status has been fully determined in the prior separation action, and the prior Mexican divorce and prior remarriage are, of necessity, void--void by implication of the judicial declaration in the separation judgment.

The order in so far as it dismissed the second cause of action was also properly granted and the order, therefore, should be affirmed in all respects.

There are two basic grounds on which the cause of action for annulment falls. Both of these are discoverable from the pleading in accordance with the precedents that have now become well established in this field. Nor would a trial develop any other facts or factors which would serve to distinguish this case from the applicable precedents. In fact, it appears also that there are no disputed material facts. Defendants concede arguendo and in truth the allegations of the complaint, except only as to plaintiff wife's knowledge of the husband's divorce and remarriage prior to the separation judgment.

The first ground is that the res judicata effect of the first wife's separation judgment precludes the granting of any relief such as that sought in this action. The second ground is that there is some discretion reposed in the court in entertaining actions under Section 1134 of the Civil Practice Act. This is so even where the action is only between the parties to the marriage attacked as null. It is so in even greater degree when the action is brought by a first spouse to annul the marriage between defendant spouse and another. Thus, in the exercise of discretion the court will not render an unnecessary judgment.

It is ancient law that a judgment in rem is res judicata as to all the world with regard to the res or status that is determined therein. In a matrimonial action the condition of marriage or non-marriage is involved. An essential issue is, therefore, one of status--or, put another way, there is a marital res subject to in rem jurisdiction. As a consequence, in ordinary circumstances a judgment determining marital status is binding on the whole world, and it is not confined in effect to the immediate parties to the action in which the judgment determining status was rendered. Matter of Holmes' Estate, 291 N.Y. 261, 52 N.E.2d 424, 150 A.L.R. 447; Urquhart v. Urquhart, 272 App.Div. 60, 69 N.Y.S.2d 57, affirmed 297 N.Y. 689, 77 N.E.2d 7; Restatement, Judgments, § 74, particularly Comment a; 50 C.J.S. Judgments, § 910, subd. c, par. (3); 30A Am.Jur., Judgments, § 136; Rediker v. Rediker, 35 Cal.2d 796, 22 P.2d 1 (Traynor, J.); Brigham v. Fayerweather, 140 Mass. 411, 5 N.E. 265 (Holmes, J.); Ann. 20 A.L.R.2d 1163 et seq.; cf. Ann. 87 A.L.R. 203 et seq. For reasons that are readily apparent, and which are exampled in the Holmes and Rediker cases, supra, a divorce judgment determines only status of nonmarriage from the time of judgment but is not determinative of status prior to judgment. This, of course, presents no problem in applying res judicata to a separation judgment which rests upon a foundation of a marriage subsisting before and after the separation judgment. Garvin v. Garvin, supra, 306 N.Y. 118, 116 N.E.2d 73; Statter v. Statter, 2 N.Y.2d 668, 163 N.Y.S.2d 13; Cherubino v. Cherubino, 284 App.Div. 731, 134 N.Y.S.2d 573.

It therefore follows that the separation judgment obtained by plaintiff wife is determinative as to the whole world, that is, as to third parties. That separation judgment subsists not only as a judicial declaration between the parties to the separation action, but also as to any others, such as the second wife whose marriage to the husband antedates the judgment.

Moreover, the second wife is not a principal party defendant so much as she is an indispensable party codefendant to the action to annul the marriage by the defendant Presbrey with her. Anderson v. Hicks, 150 App.Div. 289, 134 N.Y.S. 1018; Adams v. Vulovich, 191 Misc. 464, 78 N.Y.S.2d 570; Feldman v. Intrator, 175 Misc. 632, 24 N.Y.S.2d 665; Johnson v. Johnson, 13 Misc.2d 891, 181 N.Y.S.2d 73. Since the principal defendant, the twice-marrying husband, is already bound by the separation judgment, no further relief is necessary as to him and, derivatively, the codefendant status of the second wife fails of purpose. On this analysis, the second amended complaint fails in both its causes of action.

However, because plaintiff wife places the emphasis she does on Section 1134, and argues that its effect is mandatory on the court, further treatment of the question is required.

Section 1134 is the successor statute to several predecessors, the first of which was first enacted in 1824. 2 Rev.Stat. of N.Y., 1st Ed., Part II, Ch. VIII, Art. 2, § 22 (p. 142) ¹. It was part of a comprehensive statute (Ibid. § 20 et seq.) which was enacted, among other things, to codify the holding of Chancellor Kent that chancery had jurisdiction to entertain an action to annul a voidable marriage on grounds of which equity would take cognizance in the case of voidable contracts generally. Wightman v. Wightman, 4 Johns. Ch. 343. At that time there were no statutes in this State authorizing actions for annulment. In England such actions had lain in the ecclesiastical courts. But here, there were neither such courts nor were there statutory substitutes provided for the secular courts.

The new comprehensive statute was also designed to elaborate upon the dicta of the Chancellor in suggesting that certain kinds of void marriages would also be the subject of chancery relief as a matter of inherent jurisdiction. The validity of the dicta had been questioned. Burtis v. Burtis, 1 Hopk. Ch. 557; 3 Rev.Stat. of N.Y., 2d Ed., 658, at 659-660; see, also, Ibid. 661. It would appear, therefore, that the statutory remedy provided by Section 1134 is not, historically, of exclusively legislative origin. It had its roots in the exercise of chancery discretion. The statute, moreover, was framed, in part at least, with reference to that inherent chancery...