Wasserman v. Wasserman

• Decision Date: 18 March 1966
• Citation: 268 N.Y.S.2d 200,49 Misc. 2d 577
• Parties: Isio F. WASSERMAN, Plaintiff, v. Freda Alice WASSERMAN, Defendant.
• Court: New York Supreme Court

Page 200

268 N.Y.S.2d 200

49 Misc.2d 577

Isio F. WASSERMAN, Plaintiff, v.Freda Alice WASSERMAN, Defendant.

Supreme Court, Oneida County.

March 18, 1966.

Arnold L. Speiller, Utica, for plaintiff.

Anthony J. Fernicola, Utica, for defendant.

RICHARD J. CARDAMONE, Justice:

The plaintiff seeks a declaratory judgment pursuant to CPLR 3001 adjudging the marriage between the plaintiff and defendant null and void.

The plaintiff(husband) and the defendant(wife) were married in Greenwich, Conn. on July 18, 1958.The defendant had been previously married.Approximately one year prior to her marriage to the plaintiff, the defendant went to Alabama and obtained a divorce from her then husband on July 13, 1957.The plaintiff and defendant have both been residents of New York State for over ten years.The basis of the plaintiff's complaint is that his wife's divorce in Alabama from her former husband was invalid because the Courts of Alabama had no jurisdiction over her person.

New York State must give full faith and credit to the decree of divorce granted in Alabama.(Williams v. State of North Carolina, (II)325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577(1944);Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552(1951)).A collateral attack on that decree may only be permitted in this State, if such is permitted in Alabama.(SeeKlarish v. Klarish, 19 A.D.2d 170, 172, 241 N.Y.S.2d 179, 181(First Dep't1963), affd.14 N.Y.2d 662, 249 N.Y.S.2d 869, 198 N.E.2d 902(1964)).If it cannot be attacked in the rendering State for lack of jurisdiction, it cannot be attacked here.(Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429(1948)).It appears that such a collateral attack is permitted in Alabama.(Smith v. Smith, 247 Ala. 213, 23 So.2d 605, 610(1945)).

The record of the divorce proceeding in the State of Alabama reveals that the defendant herein, Mrs. Wasserman, stated to that Court that she was a bona fide resident of Alabama.This is set forth not only in her complaint but also in her sworn deposition.Title 34, Sections 27and29 of the Code of Alabama, 1940, (effective in July 1957) required a plaintiff to be a bona fide resident citizen of Alabama for twelve months preceding the filing of the bill.Even if the twelve month requirement had no application to the plaintiff, she must still have been domiciled in Alabama, without regard to any specific period of time, so as to confer upon the Court jurisdiction of the res. (Levy v. Levy, 256 Ala. 629, 56 So.2d 344(1952)).

It is well-settled that the defendant and her former husband are estopped from relitigating the validity of the Alabama divorce.(Boxer v. Boxer, 7 A.D.2d 1001(10), 184 N.Y.S.2d 303(Second Dep't1959), affd.7 N.Y.2d 781, 194 N.Y.S.2d 47, 163 N.E.2d 149(1959);Weiner v. Weiner, 13 A.D.2d 937(1), 216 N.Y.S.2d 788(First Dep't1961)).Nevertheless, it appears to this Court that the former husband, Daniel Brock, the defendant in the Alabama proceeding, should have been made a party here (Bard v. Bard, 16 A.D.2d 801, 802(27), 228 N.Y.S.2d 294, 295(Second Dep't1962)).While the present interpretation of the law with regard to any obligation which Brock may have toward his former wife, defendant herein, indicates that such have been extinguished (Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, 148 A.L.R.2d 312(1954); yet, as one Court observed, answers to the problems posed in this area of the law '* * * are only sometimes set to rest by the latest advance sheets to the reports'.(Denberg v. Frischman, 24 A.D.2d 100, 104, 264 N.Y.S.2d 114, 118(First Dep't1965)).Thus, any decree rendered here might well be the subject of a motion to re-open on Brock's behalf at a later date.

Regardless of the joinder of the former husband, however, the plaintiff's cause must fail.While the plaintiff is not estopped from attacking the validity of the Alabama divorce since he is a 'stranger' to it (Williams v. State of North Carolina, supra, 325 U.S. at p. 230, 65 S.Ct. 1092), he still has the heavy burden of setting aside the decree rendered by the Court of a sister state.(Williams v. State of North Carolina, supra, at p. 234, 65 S.Ct. 1092).In his attempt, the plaintiff's principal proof before this Court consisted of the testimony of the defendant, his own wife, who was the plaintiff in the Alabama divorce proceeding.Her sworn deposition as to residence furnished to the Court in Alabama is at such complete variance with her sworn testimony in this Court on the...