Ramm v. Ramm

• Decision Date: 13 April 1970
• Citation: 34 A.D.2d 667,310 N.Y.S.2d 111
• Parties: Elsa T. RAMM, Appellant, v. August H. RAMM et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 111

310 N.Y.S.2d 111

34 A.D.2d 667

Elsa T. RAMM, Appellant, v. August H. RAMM et al., Respondents.

Supreme Court, Appellate Division, Second Department.

April 13, 1970.

Austin & DuPont, Mineola, for plaintiff-appellant; Paul C. Ludwig, Jr., Mineola, Stephen J. Masse, Jamaica, of counsel.

David Miller Kahn, White Plains, for defendants-respondents.

Before BRENNAN, Acting P.J., and RABIN, HOPKINS, BENJAMIN, and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In an action for declaratory judgment, plaintiff appeals from a judgment of the Supreme Court, Queens County, dated January 3, 1969 and made after a nonjury trial, which declared, Inter alia, that plaintiff and defendant August H. Ramm (hereinafter referred to as 'the defendant') were legally and effectively divorced as of January 12, 1962.

Judgment modified, on the law, by striking therefrom the last decretal paragraph, which directs that the action is dismissed. As so modified, judgment affirmed, with costs to respondents. The findings of fact below are affirmed.

The major issue on this appeal is whether a belated appearance in a Mexican divorce action, entered after the rendition therein of a final judgment of divorce that was void and non-recognizable in this State when rendered, which appearance resulted in a postjudgment declaration by the Mexican court that the judgment was Res judicata and invulnerable to attack by the parties or by a stranger to the action, qualifies the divorce for recognition here as of the date of the appearance. The trial court in the instant action held that it does, on the authority of Hytell v. Hytell, 44 Misc.2d 663, 254 N.Y.S.2d 851. We adopt the rule of the cited case.

Plaintiff and defendant were married in this State on or about June 5, 1938 and continued to reside here as husband and wife until sometime in January of 1950 when defendant allegedly physically separated from plaintiff. On or about September 27, 1960 defendant obtained a divorce in Juarez by appearing personally in the First Civil Court of the District of Bravos, State of Chihuahua, Mexico. Plaintiff did not appear by attorney and denied she had ever been served with process. It is not contended that this divorce was valid under our law when rendered (Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709). Shortly thereafter defendant remarried in the State of Connecticut.

On or about October 19, 1961 plaintiff commenced an action for a declaratory judgment in the Supreme Court, Westchester County, seeking, Inter alia, a declaration of the invalidity of the Mexican divorce. The action was discontinued by stipulation of the parties dated December 27, 1961. Two days later plaintiff, represented by counsel and after conferring with him, signed a general release and simultaneously signed a document styled 'Defendant's Special Power of Attorney' which, by its terms, appointed one Trias, a Mexican attorney, 'to appear for and represent me in the divorce action that my husband * * * has instituted against me * * * and to state in my name, that I am in complete conformity with the judgment which was rendered in the said action, that I submit myself expressly to the jurisdiction of the Court and that I accept the aforesaid judgment as final and conclusive; and generally to act * * * with full power of substitution, hereby ratifying and confirming and holding valid all that my said attorney shall lawfully do or cause to be done by virtue of these presents.' Plaintiff signed these documents only after her attorney had informed her that her husband required them before releasing to her $15,000 which was being held in escrow and had further informed her that the document was 'intended to validate the prior decree of divorce.' We agree with the trial court that the evidence supports the finding that plaintiff 'knowingly and willingly' executed the documents in question.

On or about January 12, 1962, one Carlos Martinez Alvidrez, another Mexican attorney, submitted a petition to the First Civil Court of the District of Bravos, under the authority of the aforementioned power of attorney, in which, after stating plaintiff's submission to the jurisdiction of the court and her conformity with the judgment previously rendered, he requested the court to acknowledge his personal appearance on plaintiff's behalf, to declare the prior judgment Res judicata and invulnerable to attack by the parties or by a stranger to the action and to issue a certified copy of the judgment to him. On or about January 15, 1962, a decision of the court was rendered which acknowledged the pleading and ordered the pleading to be added to the file of the divorce action in the records of the court, 'in accordance with the provisions of Articles 39 of the Law of Divorce and 85 of the Code of Civil Procedures.' A certified copy of the judgment of divorce, the petition of Alvidrez and the decision of the court, with its English translation, were sent to plaintiff and received by her in the latter part of January, 1962. She commenced the instant action on April 7, 1965.

Plaintiff contends that the decision of the Mexican court was ineffective to qualify the divorce for recognition in this State, because Mexican courts have no authority to reopen their divorce decrees under any circumstances, and, since defendant did not personally appear either on the date of the submission of plaintiff's power of attorney or on the date of the decision thereupon, that the subsequent decision of the Mexican court does not conform with the personal contact requirement of Rosensteil, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709, Supra. In addition, plaintiff denies the authority of Alvidrez to appear on her behalf and contends that, at any rate, her appearance was obtained as a result of an illegal contract to alter or dissolve a marriage in contravention of section 5--311 of the General Obligations Law.

In Hytell v. Hytell, 44 Misc.2d 663, 254 N.Y.S.2d 851, Supra, on substantially the same facts, the Special Term held that the parties were legally and effectively divorced as of the date of the petition to the Mexican court. Mr. Justice Bernard S. Meyer concluded as follows:

'Plaintiff argues that Mexican law does not recognize a Nunc pro tunc order and the experts for both parties so testified. The * * * decision in the Mexican proceeding was not a Nunc pro tunc order, however, but the recording of plaintiff's submission to the court. The court finds, as defendant's expert testified, that under Article 395 of the Code of Civil Procedure of Mexico, the judgment of divorce, even if originally defective, became Res judicata by judicial declaration because expressly consented to by plaintiff through her attorney acting under a power of attorney conforming to the requirements of Article 395. The fact that neither party appeared in Mexico * * * has no bearing since Mexican law did not require such appearance and New York law requires nothing more than An appearance by one of the parties to the proceeding, which took place in September, 1957. That defendant's personal appearance and plaintiff's appearance by attorney took place in two stages rather than one furnishes no reason for refusing to accord to a decree binding upon plaintiff under Mexican law recognition under New York law' (p. 666, 254 N.Y.S.2d p. 854; emphasis in original).

We agree with this statement. Plaintiff is in error when she assumes that resurrection of a void decree is the Sine qua non of recognition in this case. We are here recognizing and applying Mexico's law of Res judicata--not divorce. By her voluntary submission to the jurisdiction of the Mexican court, plaintiff foreclosed herself, as well as strangers to the decree, from attacking the decree in the rendering jurisdiction. 'While 'we are under no constitutional compulsion to give full faith and credit' to the judgment of a court of a foreign nation...