Ticknor v. Ticknor
| Decision Date | 28 March 1960 |
| Citation | 23 Misc.2d 257,200 N.Y.S.2d 661 |
| Parties | Loretta Lucy TICKNOR, Plaintiff, v. Charles Horace TICKNOR, Defendant. |
| Court | New York Supreme Court |
Glasser, Baily & Litwack, New York City, for plaintiff.
Arthur I. Trager, Mt. Vernon, for defendant.
This is a motion for alimony pendente lite and counsel fee in a separation action which includes general allegations of cruel and inhuman treatment, conduct on the part of the defendant which has made it unsafe for plaintiff to cohabit with him, abandonment, refusal and neglect of the defendant to provide for plaintiff, and adultery.
The defendant has made a cross-motion for summary judgment, pursuant to Rule 113 of the Rules of Civil Practice, asking that the complaint be dismissed on the ground that the parties were divorced in the State of Alabama by decree dated June 16, 1958, issued by the Circuit Court of that State in the Tenth Judicial District. In support of his contention defendant has submitted documentary evidence consisting of a power of attorney executed by the plaintiff on May 31, 1958, authorizing one William L. Allison to appear for her in the action commenced by this defendant against her in the State of Alabama, an Answer and Waiver signed by her and the Final Decree of Divorce.
Plaintiff counters by saying she did not know what she was signing and that defendant '(threatened) the plaintiff with bodily harm unless she executed some documents which were thrust under her nose.'
It appears that the parties were married on July 18, 1952. There is no issue of this union although plaintiff has a daughter by a prior marriage. On April 18, 1958, the parties separated, plaintiff returning with her daughter to the family home in Sunbury, Pennsylvania, and the defendant remaining in Mount Vernon, New York, where they then lived.
Plaintiff contends that the reason for the separation was that defendant no longer desired to live with her. On the other hand, defendant says that plaintiff just packed her belongings and with her daughter went to reside in Sunbury, Pennsylvania, because she couldn't live in New York and got too homesick and lonesome. Defendant's version seems to be substantiated by a letter postmarked May 8, 1958, sent by plaintiff from Sunbury, Pennsylvania, to defendant at Mount Vernon, New York, wherein she says, in part:
The letter is very solicitous and written in a very friendly and understanding tone. It ends as follows:
The Alabama documents above referred to were signed by her on May 31, 1958, some three weeks later, when defendant visited her in Pennsylvania. The power of attorney was executed before a Notary Public in Sunbury and her signature to the Answer and Waiver was witnessed by the same Notary.
Apparently both parties felt that a divorce was the only solution because on May 20, 1958, defendant wrote to plaintiff:
Plaintiff could not have been surprised by being given the Alabama papers to sign for the correspondence on both sides was leading to just that. On May 26, 1958, she received a letter from defendant stating:
For two years plaintiff did nothing and has now suddenly brought this action on very tenuous allegations, with no facts.
There is no need to discuss the lack of probability of success in the plaintiff's matrimonial action, since the only point involved is the validity of the Alabama decree. Concededly the defendant has not supported the plaintiff since it was obtained and that decree must be the justification for not having done so, or there is none.
Insofar as the foreign decree is attacked...
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