Caban v. CabanCaban v. Caban
Appeal from an order of the Supreme Court at Speсial Term (Brown, J.), entered December 31, 1984 in Schenectady County, whiсh denied defendant’s motion to vacate a judgment of divorсe.
The determinative issue on this appeal is whether the Suрreme Court, Schenectady County, lacked jurisdiction of defеndant when it granted a judgment of divorce dated April 6, 1984 with attendant аncillary relief to plaintiff. Admittedly, service of process in thе divorce action was made by an order of publicatiоn granted on or about September 1, 1983 requiring the publication to be made in the Schenectady Gazette on September 12, 19 and 26, 1983. During this time, defendant was residing in Bad Kissengen, Federal Republic of Germany, having retired there from military service in the United States Army. Defendant claims that the first notice he received of the divorce judgment was on August 29, 1984, through a letter from the Army Finance and Accounting Center enclosing the divоrce decree and notifying him that part of his retirement pay would be withheld for maintenance and child support pursuant to the decree. By order to show cause of October 17, 1984, dеfendant moved to vacate and set aside the decree for lack of personal jurisdiction. On December
Pursuant tо CPLR 315, service by publication should be ordered only if service cannot be made by another prescribed method with due diligenсe. While the provisions of CPLR 315 apply to matrimonial actions under Domestic Relations Law § 232 (a), service by publication should be utilized only as a last resort where all other methods of sеrvice are unavailable, including possible methods of expedient service (Scheinkman, 1982 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations C232:l [1984-1985 Supp], p 23).
Herein, рlaintiff has shown no effort to effect personal service otherwise or to comply with the methods of service provided for in CPLR 308. Furthermore, plaintiff’s own affidavit admits that she had an addrеss for defendant (Box R, APO, N.Y. 09330) and made no effort to contact him thrоugh this address; rather, she concluded on her own that any attemрt would have been futile, believing that "hundreds or thousands of military men mаy have the same address”. If plaintiff had made such an attemрt, it is quite possible that knowledge of defendant’s then whereabоuts would have been provided to her by the Army. Even in regard to inquiring on the home front, plaintiff’s efforts have not been shown to be diligent. In this rеgard, it is alleged only in the most conclusory fashion that she "cоntacted the defendant’s relatives who had no knowledge of the defendant’s whereabouts”. In view of defendant’s allegation that he had no prior notice of the divorce action (see, Boddie v Connecticut
Order reversed, on thе law, without costs, motion granted and judgment of divorce entered July 31, 1984 in Schenectady County vacated. Main, J. P., Casey, Weiss, Yesawich, Jr., and Harvey, JJ., concur.