Usher v. Usher
| Decision Date | 03 May 1973 |
| Citation | 343 N.Y.S.2d 212,41 A.D.2d 368 |
| Parties | Suzanne M. USHER, Respondent, v. David A. USHER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David A. Usher, pro se.
Laura H. Holmberg, Ithaca (Walter J. Wiggins, Ithaca, of counsel), for respondent.
Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and MAIN, JJ.
This is an appeal from an order of the Supreme Court, entered December 18, 1972 in Tompkins County, which denied a motion to dismiss the complaint.
The papers indicate: that plaintiff and defendant, both aliens, following their marriage in New Zealand on December 10, 1960 resided in England until 1963, when they came to the United States; that defendant first served as a postdoctural student at Harvard University and then as part of the professorial staff at Cornell, the parties having come to Tompkins County, New York in 1965; that they separated on May 28, 1971, defendant went to England during the next month on study leave and plaintiff moved to New Zealand on August 19, 1971; and that on September 29, 1971, while living in England, defendant was served with a summons commencing an action for divorce, the venue being placed in Tompkins County.
Defendant moved for dismissal of the complaint asserting, after withdrawal of one ground, six based under subdivision (a) of CPLR 3211, among them being that the court did not have jurisdiction of the subject matter or of defendant's person. The application was denied without prejudice to raising the issue of non-residency of the parties in defendant's pleadings and upon trial. The gravamen of defendant's appeal is that neither he nor plaintiff was a domiciliary of New York prior to commencement of the action and that, consequently, dismissal should have been granted or a separate hearing ordered on the jurisdictional issues prior to a trial on the merits.
As to the required residence of the parties, section 230 of the Domestic Relations Law provides that an action for divorce may be maintained only when: (1) the parties were married in the State and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding; or, (2) the parties have residedin this State as husband and wife and either party is a resident thereof when the action and commenced and has been a resident for a continuous period of one year immediately preceding or, (3) the cause occurred in the State and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action; or, (4) the cause occurred in the State and both parties are residents thereof at the time of the commencement of the action; or, (5) either party has been a resident of the State for a continuous period of at least two years immediately preceding the commencement of the action. The term 'residence', as used in the various provisions of the Domestic Relations Law relating to residence requirements relative to maintenance of actions for divorce has been construed to be synonymous with the term 'domicile', so that the requirement of residence is not satisfied by the mere bodily presence of the parties within the State, no matter for how long a period (Gray v. Gray, 143 N.Y. 354, 38 N.E. 301; Clapp v. Clapp. 272 App.Div. 378, 379, 71 N.Y.S.2d 354, 355; 1 Foster-Freed, Law and the Family (Rev. ed.), p. 134) and, the legal domicile of the wife is prima facie that of her husband (Matter of Daggett, 255 N.Y. 243, 246, 174 N.E. 641, 642). Under section 230 of the Domestic Relations Law, the lower court lacks subject matter jurisdiction of the action if neither party was in fact domiciled in New York prior to the commencement of the action. Apart from the question of In rem jurisdiction, personal service outside the State does not give the court personal jurisdiction over a defendant in a matrimonial action unless he is a domiciliary (CPLR 313, 314; Whitaker v. Whitaker, 32 A.D.2d 595, 299 N.Y.S.2d 482).
The issue of domicile is a question of fact and defendant has presented considerable proof supporting his contention that at no time was he domiciled in New York and that plaintiff was not...
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Smith v. Smith
...relative to the maintenance of divorce actions, "has been construed to be synonymous with the term 'domicile' "; Usher v. Usher, 41 A.D.2d 368, 370, 343 N.Y.S.2d 212, 215; see Gildersleeve v. Gildersleeve, supra, 88 Conn. at 692, 92 A. 684; and " domicil" consists of actual residence couple......
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