White v. White
| Citation | 26 Misc.2d 631,208 N.Y.S.2d 746 |
| Parties | Ludie WHITE, Petitioner, v. Octavius WHITE, Respondent. |
| Decision Date | 14 December 1960 |
| Court | New York Domestic Relations Court |
Charles H. Tenney, Corp. Counsel, Alice Trubin Zizmor, Asst. Corp. Counsel, of counsel, for petitioner .
Ira H. Subin, New York City, for respondent.
This case turns on the validity of an Alabama divorce obtained on July 11, 1960 by the Respondent husband against Petitioner. Even though the Respondent was clearly not a bona fide resident of Alabama in 1960, if the Petitioner then voluntarily submitted herself to the jurisdiction of the Alabama court, the divorce decree cannot be attacked collaterally and is entitled to full faith and credit in this State. LaBarr v. LaBarr, 282 A.D. 583, 125 N.Y.S.2d 714; Boxer v. Boxer, 7 A.D.2d 1001, 184 N.Y.S.2d 303; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429. If, however, the Petitioner's appearance in the Alabama action was induced by fraud, coercion or duress or was unauthorized, the resulting divorce may be attacked collaterally. Averbuck v. Averbuck, 270 A.D. 116, 58 N.Y.S.2d 392; Schwartz v. Schwartz, 190 Misc. 757, 75 N.Y.S.2d 592; Towers v. Towers, 21 Misc.2d 56, 195 N.Y .S.2d 556; Ticknor v. Ticknor, Sup., 200 N.Y.S.2d 661.
In the instant case the Respondent husband in the City of New York and in the year 1956 induced the Petitioner, a person of very limited understanding, to sign a so-called notice of personal appearance and waiver in an action yet to be commenced in Alabama. This notice of appearance is rather unusual. It is undated and unnotarized. It gives no address for the Petitioner. There is a subscribing witness whose address is given only by street and number, the City which is Detroit, Michigan, being omitted. No complaint was prepared and no action whatever was taken by Respondent on this 1956 notice of appearance until the year 1960.
On May 17, 1960 the Petitioner filed in this Court a petition for support from the Respondent and on June 16, 1960, the return day of the summons, only the Petitioner and Respondent's attorney appeared. On his affidavit of engagement the hearing was adjourned to July 7, 1960. On about July 1, 1960, the Respondent sought to obtain from the Petitioner her signature to a new and presumably up-to-date and more complete notice of appearance. The Petitioner declined to sign it without consulting counsel, and after so doing refused to sign it or to agree to an Alabama divorce. The Respondent then made no mention of the 1956 notice of appearance.
Undeterred by this refusal and instead of attending the hearing of July 7, 1960, the Respondent took his vacation and went to Alabama from where he wired the Petitioner on July 6, 1960. ...
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