Roberts v. Roberts

• Decision Date: 23 July 1965
• Citation: 261 N.Y.S.2d 742,47 Misc.2d 41
• Parties: Leabelle ROBERTS, Plaintiff, v. Basil J. ROBERTS, Defendant.
• Court: New York Supreme Court

Page 742

261 N.Y.S.2d 742

47 Misc.2d 41

Leabelle ROBERTS, Plaintiff, v. Basil J. ROBERTS, Defendant.

Supreme Court, Special Term, Madison County.

July 23, 1965.

Joe Schapiro, Hamilton, for plaintiff.

Adcook, Doyle & Guy, East Syracuse (Carl F. Guy, East Syracuse, of counsel), for defendant.

HOWARD A. ZELLER, Justice.

Plaintiff moves in this matrimonial action for summary judgment on her first cause of action seeking to set aside a separation agreement executed by the parties on or about February 15, 1964, and for a declaration that an Alabama divorce granted defendant on or about March 23, 1964 is void and that she is the lawful wife of defendant. Plaintiff's second cause of action is for separation which concededly is contingent upon a determination favorable to plaintiff on the first cause of action.

Defendant cross-moves to dismiss the complaint on the ground that a valid divorce decree of a sister state may not be collaterally attacked in New York courts as a matter of law.

Plaintiff's complaint admits she signed an instrument purporting to permit defendant to secure divorce in the State of Alabama. Annexed to one of her affidavits is an 'Answer and Waiver' signed by her which states she accepts service of defendant's Alabama complaint and submits to the jurisdiction of the Alabama Court.

The gist of plaintiff's first cause of action, as amplified by her affidavits, is that she signed both the separation agreement and any instruments relating to an Alabama divorce under duress, that unconscionable advantage then was taken of her because she was in such a physical and mental state as to be unaware of the true import of the papers signed by her, and that their contents were not made clear to her. The first cause of action also attacks the good faith and validity of the Alabama residence supposedly established by defendant as an incident of the Alabama divorce action.

Beyond the documents thus under attack, defendant seeks to buttress his motion for summary judgment by affidavits and the transcript of an examination before trial of plaintiff.

Concerning plaintiff's motion for summary judgment declarative of the marital status of these parties, CPLR 3212 provides in part 'Except as provided in subdivision (d) with respect to a matrimonial action, any party may move for summary judgment in any action, after issue has been joined. * * *

(d) MATRIMONIAL ACTIONS. In a matrimonial action, a motion for summary judgment may be made only on the basis of documentary evidence or official records which establish a defense to the cause of action. The motion shall be granted if upon such evidence or records, the defense shall be established sufficiently to warrant the court as a matter of law in directing judgment.'

CPLR 105(m) reads in part 'The term 'matrimonial action' includes actions * * * for a declaration of the * * * nullity of a foreign judgment of divorce and for a declaration of the validity * * * of a marriage.'

Thus a motion for summary judgment is not available to plaintiff to declare the Alabama divorce a nullity or to declare her marriage to defendant currently valid and existing. By statute, this summary procedure is open only to the defendant in a matrimonial action. (See Ticknor v. Ticknor, 23 Misc.2d 257, 200 N.Y.S.2d 661; Brandstadter v. Brandstadter, Sup., 193 N.Y.S.2d 687.) Plaintiff's motion for summary judgment should be dismissed.

On its face, defendant Roberts' motion for summary judgment insofar as made on the basis of 'documentary evidence or official records which establish a defense to the cause of action' may be entertained. However, CPLR 3212(d) provides such a motion shall be granted only 'if upon such evidence or records, the defense shall be established sufficiently to warrant the court as a matter of law in directing judgment.' The present state of the proceedings herein present several obstacles to granting defendant's motion for summary judgment.

This court should not refuse to give full faith and credit to the...