Rosenbluth v. Rosenbluth

• Decision Date: 16 May 1962
• Citation: 34 Misc.2d 290,228 N.Y.S.2d 613
• Parties: Sonia ROSENBLUTH, Plaintiff, v. Herbert ROSENBLUTH, Defendant.
• Court: New York Supreme Court

Page 613

228 N.Y.S.2d 613

34 Misc.2d 290

Sonia ROSENBLUTH, Plaintiff, v. Herbert ROSENBLUTH, Defendant.

Supreme Court, Sullivan County.

May 16, 1962.

Machson & Gellman, Monticello, for plaintiff.

Oppenheim & Oppenheim, Monticello, for defendant.

ISADORE BOOKSTEIN, Official Referee.

Plaintiff has instituted this action for a separation on the ground of abandonment and non-support. Defendant concedes the abandonment and that, accordingly, if his abandonment is without justification, plaintiff is entitled to a decree of separation. However, he claims that his abandonment of plaintiff was justifiable and that such abandonment occurred as soon as he discovered that an Alabama divorce procured by plaintiff against her first husband was allegedly void and he counterclaims for a decree of annulment of the marriage to plaintiff on that basis.

The facts are not in dispute and findings of fact and conclusions of law have been waived.

The undisputed facts are as follows:

Prior to August 8, 1956, plaintiff was married to one Edward V. Langston in the State of New York; from that date to the date of her Alabama decree of divorce she and Langston resided and were domiciled at 16 Montgomery Street, Walden, Orange County, New York; Langston was never physically present in the State of Alabama; plaintiff was employed at Newburgh, New York, and took a vacation or leave of absence but did not terminate her employment, and during that period went to Alabama for the sole purpose of obtaining a divorce and was there for no more than one week; in thus going to Alabama she did not terminate her domicile or residence in the State of New York, and had no intention of doing so; she had no intention to make Alabama her residence or domicile and did not do so; on August 6, 1956 she filed a suit for divorce against her then husband in Alabama; he filed an instrument of waiver and answer which constituted an appearance by him in the action; immediately after obtaining her decree of divorce in Alabama on August 8, 1956, she returned to her residence and domicile in Walden, New York, where the issue of her marriage to Langston were domiciled and resided and where they attended school and where she has resided and has been domiciled ever since; during all of that period she was and has continued to be registered as a voter in New York State; that the marital status or res of plaintiff and her then husband continued in New York State.

On January 11, 1959, plaintiff and defendant were married at Ellenville, New York, and lived together as husband and wife until on or about July 18, 1961 at which time defendant left the plaintiff, upon discovery of the alleged invalidity of plaintiff's Alabama decree of divorce from her prior husband; plaintiff then instituted this action for separation, in which the summons and complaint were served on defendant on July 31st, 1961 and in which defendant answered and counterclaimed for a decree of annulment.

It is clear that, at all of the times above stated, plaintiff was a resident and domiciliary of New York State and was never a bona fide resident or domiciliary of Alabama.

It is equally clear then that during the few days that she was in Alabama, the marital status or res of plaintiff and her prior husband was in the State of New York.

The question for determination in this action is whether or not defendant, a stranger to the Alabama divorce, may attack the Alabama decree collaterally in the courts of New York State, in the face of the Full Faith and Credit Clause of the United States Constitution. Section 1, Article IV.

It seems no longer to be in doubt that neither party to a decree of divorce, wherein the defendant has appeared, can attack the decree collaterally in a sister state.

It is also generally the law that a granting state will not permit a collateral attack therein on one of its divorce decrees by one of the parties thereto, where both parties have appeared in the action and thus conferred jurisdiction of the person, even though through fraud practiced on the Court as to residence, they have ostensibly conferred jurisdiction of the subject matter, i. e., the marital status or res. Such jurisdiction cannot be actually conferred even by consent. This denial by the granting state is based upon the equitable doctrine of estoppel. In other words, a Court of Equity leaves the parties where they find themselves as a result of their own fraud practiced on the Court. That being so, the attack cannot be made collaterally in a sister state by one of the parties to the decree in a granting state, where both parties have appeared, by reason of the Full Faith and Credit Clause of the United States Constitution.

Thus, in the following cases, the New York Courts refused to permit collateral attacks on foreign divorce decrees, by persons who had appeared in the actions in the foreign states, or who were served with process in the foreign states: Tiedemann v. Tiedemann, (1919) 225 N.Y. 709, 122 N.E. 892, involving a Nevada divorce; Pearson v. Pearson, (1920) 230 N.Y. 141, 129 N.E. 349, also involving a Nevada divorce; Borenstein v. Borenstein, (1936) 272 N.Y . 407, 3 N.E.2d 844, involving a California divorce; Glaser v. Glaser, (1938) 276 N.Y. 296, 12 N.E.2d 305, involving a Nevada divorce; Hess v. Hess, (1937) 276 N.Y. 486, 12 N.E.2d 170, involving a Nevada divorce; Vernon v. Vernon, (1942) 288 N.Y. 503, 41 N.E.2d 792, involving a Nevada divorce; and Senor v. Senor, 272 App.Div. 306, 70 N.Y.S.2d 909, affirmed (1948) 297 N.Y. 800, 78 N.E.2d 20, which involved a Nevada divorce.

We come then to the question of whether or not a stranger to the foreign decree can attack the same collaterally in a sister state.

In the second case of Williams et al. v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, decided May 21, 1945, the Supreme Court of the United States did permit the State of North Carolina, in a criminal case against two of its domiciliaries, to make a collateral attack upon two Nevada divorce decrees, obtained by them on the ground that they were not bona fide residents or domiciliaries of Nevada, at the time when they instituted divorce actions therein. In Williams, defendants were not served in Nevada nor did they appear in the action. The decision, however, was not based on that fact. Indeed, on that score, in the first case of Williams et al. v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, the Court overruled the long-standing rule of Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867.

At page 230 of 325 U.S., at page 1095 of 65 S.Ct., in the second Williams case, the Court said:

'It is one thing to reopen an issue that has been settled after appropriate opportunity to present their contentions has been afforded to all who had an interest in its adjudication. THIS APPLIES ALSO TO JURISDICTIONAL QUESTIONS. AFTER A CONTEST THESE CANNOT BE RELITIGATED AS BETWEEN THE PARTIES. * * * BUT THOSE NOT PARTIES TO A LITIGATION OUGHT NOT TO BE FORECLOSED BY THE INTERESTED ACTIONS OF OTHERS.' (Emphasis supplied.)

A careful analysis of the second Williams case, supra, might even seem to indicate that a stranger to the divorce decree could attack it collaterally in a sister state, even if the granting state does not permit such an attack by a stranger.

However, in Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, decided March 12, 1951, a collateral attack by a stranger to a Florida divorce decree was not permitted to be made in the Courts of New York State. That determination was based upon the proposition that Florida does not permit a collateral attack on its divorce decrees even by strangers thereto. At page 589, at page 479 of 71 S.Ct., the Court said:

'When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids.' (Emphasis supplied.)

It would seem certainly to follow that where the rendering state permits a collateral attack by a stranger, § sister state may permit such attack without running counter to the Full Faith and Credit Clause of the United States Constitution.

Thus, the New York courts have permitted collateral attacks upon foreign decrees by strangers to the foreign actions in Matter of Lindgren, (1944), 293 N.Y. 18, 55 N.E.2d 849, 153 A.L.R. 936, which involved a Florida decree, and Urquhart v. Urquhart, 272 App.Div. 60, 69 N.Y.S.2d 57, affirmed (1947) 297 N.Y. 689, 77 N.E.2d 7, which involved an Arkansas decree.

In Schwartz v. Schwartz, Sup., 219 N.Y.S.2d 751, decided August 3, 1961, the Court permitted a stranger to the Nevada divorce action to attack the decree collaterally on the ground that neither party to the action was a domiciliary of Nevada and on the further ground that the defendant therein had not been served with process or appeared therein. In that case, the Court said, at page 752:

'It is alleged in the complaint that the Nevada court lacked jurisdiction over the subject matter of the action (for lack of domicile in that state of either party to the action) as well as of the person of the defendant in that action who was not served with process nor appeared therein.'

While it does not appear that the Court's decision was based on lack of jurisdiction of the subject matter or of the person or of both in the Nevada action, it did state at page 752, that 'It is undisputed that neither the decedent [the defendant in the Nevada action] nor his personal representative, in this case the executor of his estate, could question the validity of the Nevada divorce decree. * * * However, since 'it is neither a right of the decedent nor of his estate which is the subject of' the action herein, plaintiff is entitled to question the validity of the divorce decree and re-marriage in support of his asserted right to his proper share...