Verney v. Verney

• Decision Date: 01 June 1976
• Citation: 383 N.Y.S.2d 905,53 A.D.2d 608
• Parties: Peter Myles VERNEY, Appellant-Respondent, v. Joanne VERNEY, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 905

383 N.Y.S.2d 905

53 A.D.2d 608

Peter Myles VERNEY, Appellant-Respondent, v. Joanne VERNEY, Respondent-Appellant.

Supreme Court, Appellate Division, Second Department.

June 1, 1976.

Passin & Williams, P.C., New York City (John W. Williams, New York City, of counsel), for appellant-respondent.

Leon, Weill & Mahony, New York City (Barry J. Bendes, New York City, of counsel), for respondent-appellant.

Before HOPKINS, Acting P.J., and MARGETT, DAMIANI, SAMUEL RABIN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, (1) plaintiff appeals from an order of the Supreme Court, Queens County, dated August 11, 1975, which, after a hearing, (a) granted defendant's motion for a money judgment for arrears in alimony, (b) awarded defendant a counsel fee and (c) denied his cross motion Inter alia to strike the alimony provisions of a judgment of divorce dated June 7, 1971 or, in the alternative, to vacate the said judgment in its entirety, (2) defendant cross-appeals, on the ground of inadequacy, from so much of said order as awarded her the counsel fee and (3) plaintiff appeals from a judgment of the same court, entered August 13, 1975, for the arrears.

Order modified, on the law, by deleting the first and third decretal paragraphs thereof and substituting therefor provisions that (1) defendant's motion for a judgment for arrears is denied and (2) plaintiff's cross motion is granted to the extent that the judgment of divorce dated June 7, 1971 is vacated. As so modified, order affirmed, without costs or disbursements.

Judgment reversed, on the law, without costs or disbursements.

In June, 1971 plaintiff secured a divorce from defendant in the Supreme Court, Queens County, on the ground of defendant's abandonment of him for a period in excess of two years. Judgment was entered pursuant to a stipulation in open court under which, Inter alia, defendant withdrew her answer and was awarded alimony in the amount of $500 per month, 'plus taxes'. In February, 1975 defendant moved to enforce the judgment as respects arrears in alimony payments. Plaintiff thereafter cross-moved for various relief, including vacatur of the divorce decree for lack of subject matter jurisdiction. Special Term granted defendant's motion and denied the cross motion. We disagree.

It is virtually undisputed that plaintiff did not meet the statutory residence requirements necessary to maintain an action for divorce in this State. The parties, British subjects, had been married in England; the abandonment had occurred in England; defendant had never resided in the United States; and plaintiff had not resided within this State for a continuous period of at least two years immediately preceding the commencement of the action, as required by subdivision 5 of section 230 of the Domestic Relations Law, the applicable statute. These statutory residence requirements have been deemed jurisdictional in nature and, in Eckert v. Eckert, 34 A.D.2d 684, 312 N.Y.S.2d 183, this court expressly held that the failure to meet such requirements deprived the court of jurisdiction over the subject matter of the action (see, also, Langerman v. Langerman, 303 N.Y. 465, 470--471, 104 N.E.2d 857, 858--859). In other words, since the Supreme Court's jurisdiction in matrimonial actions is limited to such powers as are expressly conferred by statute, and as the applicable statute provides that a matrimonial action may only be maintained when certain residency requirements are met, noncompliance therewith leaves the court without any power to act judicially upon the matrimonial status or Res.

It is a well-settled rule that subject matter jurisdiction, otherwise nonexistent, may not come into being through waiver or estoppel (Matter of Newham v. Chile Exploration Co., 232 N.Y. 37, 133 N.E. 120). It may not be conferred by consent or agreement of the parties, and the objection as to lack of subject matter jurisdiction may be raised at any time (O'Donoghue v. Boies, 159 N.Y. 87, 53 N.E. 537; Eckert v. Eckert, supra). 'No court or judicial officer can acquire jurisdiction by the mere assertion of it, or by erroneously alleging the existence of facts upon which jurisdiction depends' (O'Donoughe v. Boies, supra, at p. 98, 53 N.E. at p. 540).

The situation at bar is thoroughly unique insofar as we have a New York plaintiff challenging the jurisdictional basis of a New York divorce decree which he, himself, sought. However, the doctrine of estoppel, which defendant would have us invoke against plaintiff, is not effective as against a claim of lack of subject matter jurisdiction and, upon the particular facts before us, is quite inappropriate. There is absolutely no question here of fraud or deceit. Indeed, defendant had moved early in the divorce proceeding to dismiss the complaint for lack of jurisdiction, which motion was denied without prejudice to its renewal upon additional facts, the initial motion papers consisting only of a notice of motion and a copy of the complaint. The motion was never renewed and the parties entered into a stipulation, settling the matter, in open court. In testimony taken in support of the allegations of the complaint, plaintiff thereafter truthfully set forth all the pertinent facts which, on their face, indicated a Lack of subject matter jurisdiction. Yet Special Term, inexplicably, found itself possessed of jurisdiction and granted plaintiff a judgment of divorce. Neither side appealed from the judgment and both have since, though to differing extents, relied thereon. Nevertheless, the fact remains that the judgment is null and void in the absence of subject matter jurisdiction.

Judicial recognition of the invalidity of this divorce decree in this particular matrimonial proceeding will not permit plaintiff to escape his obligations to defendant, as he remains resonsible for the support of his 'wife' (cf. Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290). The parties are, for all intents and purposes, being returned to the Status quo as it existed prior to the commencement of the divorce action. It is true that plaintiff remarried three years after he secured the instant judgment (there are no issue of the second marriage); but it appears that his second wife was served in this action and raised no objection to the vacatur of the 1971 divorce decree.

MARGETT, DAMIANI, RABIN and HAWKINS, JJ., concur.

HOPKINS, Acting P.J., dissents and votes to affirm the order and judgment, with the following memorandum:

The plaintiff secured judgment for divorce on his complaint alleging abandonment by the defendant. That judgment recites the withdrawal of the defendant's answer at the trial and the fact of testimony given in open court 'satisfactorily proving the allegations of the complaint'. The judgment provided that the plaintiff...