Wood v. Wood

• Decision Date: 12 August 1963
• Citation: 245 N.Y.S.2d 800,41 Misc.2d 112
• Parties: , 41 Misc.2d 95 Helena A. WOOD, Plaintiff, v. Walter A. WOOD, Defendant.
• Court: New York Supreme Court

Page 800

245 N.Y.S.2d 800

41 Misc.2d 112, 41 Misc.2d 95

Helena A. WOOD, Plaintiff, v. Walter A. WOOD, Defendant.

Supreme Court, Special and Trial Term, New York County, Part VI.

Aug. 12, 1963.

On Reargument Dec. 16, 1963.

Zelenko & Elkind, New York City (Herbert Zelenko, and Stanley E. Michels, New York City, of counsel), for plaintiff.

Sage, Gray, Todd & Sims, and Schwartz & Frohlich, New York City (Myles J. Lane and Stuart G. Schwartz, New York City, of counsel), for defendant.

SAMUEL C. COLEMAN, Justice.

Plaintiff, wife, suing for a decree of separation, faces a counterclaim for annulment, or a separation, if annulment fails. There is also a counterclaim based on property rights which I shall discuss later.

As the plaintiff's right to a separation rests upon a valid marriage (Fischer v. Fischer, 254 N.Y. 463, 173 N.E. 680), I turn to the cause of action for annulment. The parties were married in France in 1959 and again in New York, in 1960. But says the husband, neither marriage is valid because a divorce which the wife had obtained from her former husband in Chihuahua, Mexico, in 1955 was void and becuase the two marriages to him occurred during the lifetime of that husband. The divorce, he argues, though not a 'mail-order' divorce strictly (Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60), shares all the vice of such a divorce. The divorce was obtained in this manner:

The plaintiff, after entering into a separation agreement with her then husband, both domiciled in and residents of New York (an agreement which by its terms could be incorporated by reference in a divorce decree) travelled by plane from New York to Juarez, in Chihuahua. The same day or the next, she appeared in court, with an attorney, and lodged a complaint against her husband asking for a divorce on the ground of incompatibility of temperament,--a recognized ground in Chihuahua. The defendant, husband, appeared by a Mexican attorney, authorized to appear by virtue of a power of attorney mailed to that attorney from New York. The husband did not go to Chihuahua. His answer admitted the allegation of incompatibility and without further proof--the admission being adequate under Chihuahua law, a decree was entered. The plaintiff returned immediately to New York.

But on these facts, the plaintiff says--having in mind the presumed validity of the French and New York marriage ceremonies, that the defendant cannot argue that the Chihuahua divorce is void. The pattern of personal appearance of the wife and appearance by the husband by attorney, establishes the 'jurisdiction' of the Chihuahua court and precludes any further inquiry. To which the husband replies that the manner of 'acquiring jurisdiction' in Chihuahua and the nature of that 'jurisdiction' must be looked into to determine the validity of the divorce; that 'jurisdiction' means not the formal satisfaction of requirements of the foreign country but jurisdiction 'as we understand those terms' (Caldwell v. Caldwell, 298 N.Y. 146, 150, 81 N.E.2d 60, 63); that there was no jurisdiction 'as we understand those terms' and that the Mexican court therefore was powerless to proceed.

Upon these facts we start with certain premises. If neither party had actually gone to Chihuahua and the divorce had been obtained by mailing papers to attorneys in Chihuahua to enter appearances the divorce would have been void (Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60, supra). If the wife had gone to Chihuahua and had obtained a divorce by service on her husband in New York, but without his appearance, that divorce would have been void (Alfaro v. Alfaro, 5 A.D.2d 770, 169 N.Y.S.2d 943, aff'd 7 N.Y.2d 949, 198 N.Y.S.2d 318, 165 N.E.2d 880). The Record on Appeal in the Alfaro case discloses that the husband had gone to Mexico for the single purpose of obtaining a divorce, never intending to give up his New York residence, the wife was served by mail in New York, but did not appear (cf. Marum v. Marum, 8 A.D.2d 975, 190 N.Y.S.2d 812). Does the fact that the husband here appeared by mail and in effect invited a decree against him, improve the wife's position when she went to Mexico solely to obtain a divorce? In the circumstances to be shown--the nature of the proceedings in Chihuahua, the divorce laws of that State and its basis for 'assuming' jurisdiction; and above all by reference to our power over the marital status of spouses domiciled in and residents of New York--I do not think it does. The principle of the Caldwell case with its emphasis upon the extent of our power over that status is controlling.

It may be the assumption that a divorce obtained in the circumstances here is valid and some cases are frequently cited in support of that assumption. But, I believe the conclusions have been reached either by assimilating decrees of divorce in foreign countries with decrees of sister states or by overlooking the precise grounds of 'jurisdiction' upon which the foreign country presumed to act; or by attributing to 'appearance by attorney' in a divorce action the significance it may have in other actions; or on grounds of estoppel. The cases either preceded the Caldwell case, or they were decided, I think, without reference to the principle of that case.

In dealing with a decree of a foreign country, of course, the 'full faith and credit' clause of the Constitution does not apply; and it adds nothing to say that we recognize such a decree under the principles of 'comity'. We recognize foreign decrees when we do, within that principle, if after an examination of the decree--particularly in matters involving the marital status of New Yorkers, we at least accept the basis of jurisdiction upon which the foreign court acted as a proper basis, as 'we understand' jurisdiction, if not the grounds of divorce and the manner of proof; and if on grounds of policy we think we should recognize them. Cases then that equate 'full faith and credit' with 'comity' are beside the point, as are cases which rely upon U. S. Supreme Court decisions inhibiting inquiry into the jurisdictional basis of a sister state which granted the decree. No question of estoppel is involved; the wife who procured the decree is not questioning it and the defendant was in no way concerned in procuring it. And this assumes that the doctrine of estoppel has validity today in a case of this kind. (cf. Alfaro v. Alfaro, 5 A.D.2d 770, 169 N.Y.S.2d 943, affd. 7 N.Y.2d 949, 198 N.Y.S.2d 318, 165 N.E.2d 880; Marum v. Marum, 8 A.D.2d 975, 190 N.Y.S.2d 812, supra.)

We are then left with the question of jurisdiction upon which the foreign court presumed to act and our views of that question. And for that we turn to the Chihuahua 'judgment-roll' and the provisions of Chihuahua law upon which it was based. I have been aided in this by Mr. Vargas of the Mexican Bar, who testified for the plaintiff and by Prof. de Vries who testified for the defendant. My task was made easier by the almost complete agreement between the two in essential matters.

I understand this to be the position in Chihuahua: A divorce may be obtained by mutual consent. This was not such a divorce; it was a 'contested' divorce. The jurisdictional basis--'competence', the power to hear and determine a case of divorce is found in articles 22 and 23 of the Divorce Law. They are as follows:

Art. 22. The judge competent to take cognizance of a contested divorce is the one of the place of residence of the plaintiff; and to take cognizance of the one by mutual consent, the one of the residence of either of the spouses.

Art. 23. Competence may also be fixed by express or tacit submission. Express submission exists when the parties concerned renounce clearly and conclusively that forum which the law accords to them, and designate with all precision the judge to whom they submit. Tacit submission exists by the fact that the plaintiff files his complaint, or by the fact that the defendant, after having been summoned in proper form, does not timely raise the lack of competence, or, after having raised it, desists therefrom.

I add article 24. 'Residence for purposes of article 22 of the present law shall be proved by the respective certificates of the Municipal Register of the place.'

The plaintiff here appeared in Juarez and in court on January 6, 1955, with her attorney. She alleged incompatibility of temperanment and asked for a divorce. She had no certificate of residence (article 24); she was not eligible to obtain one as she was not a resident; she was no more than a transient. She did not allege she was domiciled in or a resident of Chihuahua. On the contrary, she merely supplied an 'address to receive notifications in this city' and she added 'I submit myself expressly to the jurisdiction of this court with respect to everything relating to this action and renounce all other law that may be applicable in this case for any reason.' The same day 'she ratifies her complaint in all its parts, particularly those by which she expressly submits herself to this jurisdiction'. She alleged that her husband was domiciled in New York. And on the same day her then husband appeared by an attorney (the Mr. Vargas who testified for the plaintiff here), acting pursuant to a power of attorney from the husband, dated January 3, 1955. The attorney stated that 'my principal is informed and considers himself as notified of all that has taken place in this matter and considers himself party in such action, since he expressly submits himself to this jurisdiction. That my principal, through me, answers the complaint, brought against him, stating that the facts alleged in the same are true, that he has no objections to make, and moreover prays that judgment be rendered, granting the divorce requested * * *'. The attorney added that his client ratified the separation agreement and asked to have it incorporated, by reference, in the judgment. The husband did not deny the allegation of his...