Schaefer v. Schaefer

• Decision Date: 29 March 1961
• Citation: 30 Misc.2d 278,214 N.Y.S.2d 59
• Parties: Celia SCHAEFER v. Herbert SCHAEFER.
• Court: New York Supreme Court

Page 59

214 N.Y.S.2d 59

30 Misc.2d 278

Celia SCHAEFER v. Herbert SCHAEFER.

Supreme Court, Special Term, Queens County, Part III.

March 29, 1961.

Maximino Gonzalez, New York City, for plaintiff.

Joseph L. Paradise, New York City, for defendant.

GEORGE P. STIER, Justice.

This action was brought by plaintiff for a judgment of separation on the ground of cruel and inhuman treatment.

The action was commenced by the personal service of a summons and complaint upon defendant on or about October 7, 1959. Issue was joined by the service of defendant's answer on October 20, 1959, consisting of a general denial. At the trial the defendant did not appear or testify on his own behalf but interposed the defense that this marriage had been dissolved by a judgment of divorce rendered by the Circuit Court of Madison County, Alabama, on December 2, 1960 .

The parties hereto were married in Madrid, Spain, on August 8, 1958. The plaintiff, with her daughter by a prior marriage, entered the United States on December 5, 1958, and lived with defendant at 8326 Vietor Avenue, Elmhurst, New York. During the period of time the parties lived together at the above address as husband and wife friction developed between them to such a point that defendant sought to have plaintiff sign an agreement for an annulment of their marriage, which she refused to do. During the summer months of 1959 the defendant, who had been employed by Kollsman Instrument Corporation, made application for employment with the Army Ballistic Missile Agency at Huntsville, Alabama, and was accepted for such employment to commence on or about December 1, 1959.

Relations between the parties continued to deteriorate until September 8, 1959, when defendant violently assaulted plaintiff, inflicting injuries to her necessitating medical treatment. The plaintiff thereafter instituted this action for separation, as above stated.

On November 9, 1959, this court signed an order for the arrest of the defendant on the ground that he was preparing to depart from this State, and pursuant to said order defendant was arrested on November 10, 1959, but was released from such arrest upon furnishing cash bail in the sum of $3,504 on November 19, 1959.

Defendant's sister, who testified in his behalf at this trial, stated that he left New York on November 19, 1959, by automobile for Huntsville, Alabama, stopping en route in Virginia to visit with his sister's daughter there for about two or three days, arriving in Alabama about three to five days after leaving New York. Plaintiff received two letters from defendant, one dated November 20, 1959, and the other dated December 7, 1959, giving his address as 6714 Dartmouth Street, Forest Hills (his sister's address).

On March 12, 1960, plaintiff received by mail a summons and complaint, dated March 2, 1960, from the Circuit Court of Madison County, Alabama. This action was apparently abandoned. On October 29, 1960, plaintiff received by mail another summons and complaint, dated October 20, 1960, from the same Circuit Court of Madison County, Alabama. She did not appear in that action either personally or by attorney. The complaint attached to the summons issued by the Register of the Court of March 2, 1960, alleged '1. Complainant is 48 years of age, of sound mind and domiciled in the City of Huntsville, County of Madison and State of Alabama, where he is and has been legally resident and where he is and has been gainfully employed since the 1st day of December, 1959 * * *.' (Emphasis supplied.) The Bill of Complaint, attached to the summons issued by the Register of the Court on October 20, 1960, alleged '1. Complainant is over twenty-one years of age, of sound mind and is and has been a resident of the City of Huntsville, County of Madison and State of Alabama for more than one year continuously next preceding the filing of this bill * * *.'

A state of domiciliary origin is compelled to recognize a divorce rendered in another state upon constructive service of process and without personal jurisdiction of the defendant under the full faith and credit clause (Art. 4, § 1 of the Constitution of the United States) only if the court of the other state had jurisdiction to enter the judgment. As stated in Williams v. State of North Carolina, 325 U.S. 226, 230, 232, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577: 'As to the truth or existence of a fact, like that of domicil, upon which depends the power to exert judicial authority, a State not a party to the exertion of such judicial authority in another State but seriously affected by it has a right, when asserting its own unquestioned authority, to ascertain the truth or existence of that crucial fact. * * *. In short, the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact.' See also Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804, cited with approval in Williams v. State of North Carolina, supra; People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.

Title 34, section 29 of the Code of Alabama, provides: 'If defendant a nonresident, a year's residence by plaintiff must be proved.--When the defendant is a nonresident, the other part...