Rappel v. Rappel

• Decision Date: 10 May 1963
• Citation: 39 Misc.2d 222,240 N.Y.S.2d 692
• Parties: Josephine F. RAPPEL, Plaintiff, v. Paul RAPPEL, Defendant.
• Court: New York Supreme Court

Page 692

240 N.Y.S.2d 692

39 Misc.2d 222

Josephine F. RAPPEL, Plaintiff, v. Paul RAPPEL, Defendant.

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

May 10, 1963.

Samuel Conrad Cohen, New York City, for plaintiff.

Alfred S. Holmes, New York City, for defendant (Alfred W. Charles, New York City, of counsel).

LAWRENCE J. PELTIN, Justice.

Defendant in this action was married in 1928 to one Lena Altshafler (or Altschafl) in Munich, Germany. Sometime in 1942 he obtained a divorce in Nevada, after serving his wife by publication. She did not appear in that action. Shortly thereafter he participated in a marriage ceremony with one Elizabeth Hacker, with whom he lived until 1954. Plaintiff in this action was living with her second husband in the same apartment building as defendant and his purported second wife. This proximity blossomed into romance, and after shedding their mates by means of Mexican divorces, plaintiff and defendant applied for a marriage license in this State and went through a civil marriage ceremony. This was in the latter part of 1955. The parties thereafter lived together as man and wife, maintaining residences in New York City and Lake Mahopac, New York, and a home in Florida, where they owned an orange grove.

Sometime in 1956, defendant told plaintiff of some difficulty he was having with his first wife, and that it might be necessary to go through another divorce proceeding with her. Thus, in November, 1957, he obtained an Alabama decree of divorce from his first wife. This time she appeared in the action.

There is indication that plaintiff was at that time concerned as to her status, and to ease her mind, defendant took her to see an attorney in Carmel, New York, who charged her $10 for the consultation and presumably advised her that her marriage to defendant was valid. She remained with defendant until 1961, when she consulted an attorney, purportedly as a result of defendant's mistreatment of her, to obtain a separation. She claims that it was at that time that she was advised of a possible defect in her legal status. By this action she seeks a declaration that her marriage with the defendant is a nullity by reason of the fact that defendant's marriage to his first wife was not dissolved at the time of the marriage of the parties herein, or in the event the Nevada divorce could not be collaterally attacked, an annulment of the marriage on the ground of alleged misrepresentations made by defendant to induce her into marriage. Finally, she seeks damages from defendant for fraudulently inducing her to enter into a void marriage. By way of counterclaim, defendant seeks a judgment for separation on the ground of abandonment.

Insofar as the Nevada divorce obtained by the defendant herein is concerned, we start with the general proposition that a judgment of absolute divorce obtained upon constructive service in which the nonresident did not appear or participate, if valid in the State granting the divorce, is entitled to full faith and credit in any other State, including the State of matrimonial domicile (Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 89 L.Ed. 279, 143 A.L.R. 1273). In such instance, however, the domicile of the party obtaining the divorce is an important factor (Harges v. Harges, 21 Misc.2d 59, 200 N.Y.S.2d 142), and if the facts show that the residence in a foreign State was solely for the purpose of getting a divorce, or is otherwise shown to be sham, full faith and credit need not be afforded (Re Lindgren, 181 Misc. 166, 43 N.Y.S.2d 154). The question of domicile is one of fact to be determined on evidence submitted (Zekowski v. Zekowski, 191 Misc. 914, 80 N.Y.S.2d 579), and where found not to be bona fide, may be attacked by strangers to the decree such as future spouses (Jackson v. Jackson, 274 App.Div. 43, 79 N.Y.S.2d 736).

In the instant case, defendant testified that he went to Nevada at 'the end of January or early in February, 1942' and after a few weeks filed for divorce. He returned to New York about four months later, although he claims that he entertained the idea of living in Nevada. In the interim, however, he maintained his residences in New York State, and does not appear to have taken any steps to wind up affairs here. In addition, he has voted here uninterruptedly since he became a naturalized citizen. All things considered, the conclusion is inescapable that defendant's migration to Nevada was not to take up permanent residence nor to surrender his New York domicile, but solely for the purpose of procuring a divorce. In such circumstance, his allegations of domicile must be deemed to have been a fraud on the Nevada court and his ultimate divorce a nullity. Thus, when the parties herein underwent a marriage ceremony, defendant was still married to his first wife. His marriage to plaintiff is, therefore, a void one.

In reaching this determination, the court is aware that the full faith and credit clause of the Constitution precludes collateral attack on a foreign divorce decree by a third party, unless the law of the State granting the divorce permits such attack (see, Rosenbluth v. Rosenbluth, 34 Misc.2d 290, 228 N.Y.S.2d 613; Weisner v. Weisner, 18 A.D.2d 997, 238 N.Y.S.2d 775), and under the laws of Nevada such decrees probably may not be subjected to collateral attack (see, Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426). This, however, presupposes an appearance in the Nevada action by both parties, and has no application to cases where the jurisdictional findings have been made by a court of a sister State which has entered a divorce decree in ex parte proceedings (Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; cf. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429). It is, therefore, only where there has been participation in Nevada by both parties to a divorce, where full opportunity was given to contest the jurisdictional issues, that the requirements of full faith and credit are met (Coe v. Coe, 334 U.S. 378, 384, 68 S.Ct. 1094, 92 L.Ed. 1451). It is abundantly clear that such is not the case here.

It is defendant's further contention herein, however, that even if plaintiff is found to be a proper person to collaterally attack the Nevada decree, to obtain an annulment in this action she must initially prove that defendant's first wife was free to marry the defendant. In other words, she must prove that the marriage which impedes her own was itself a valid one. To support this proposition, defendant relies on Apelbaum v. Apelbaum, 7 A.D.2d 911, 183 N.Y.S.2d 54 (2d Dept.), which states as follows:

'The presumptions favoring validity of marriages and legitimacy of children are so strong as to eclipse the presumption that might otherwise protect the validity and subsistence of a prior marriage of one or another of the parties and to place upon the party who seeks to rebut these presumptions the burden of proving that the prior marriage or marriages were valid and not terminated prior to the marriage in question, even though this might require proof of a negative.'

A proper reading of the Apelbaum case, supra, however, would indicate that defendant's reliance upon it, as support for the proposition he proffers, is misplaced. The case rightfully holds that one asserting the invalidity of a later marriage, such as plaintiff here, must prove the continued existence of the first marriage, to wit, that it did not end in divorce, or by death, etc. (see, N.Y.Jurisprudence,...