306 N.Y. 118 | NY | 1953
This case is a sequel to prior adjudications in litigation (Garvin v. Garvin, 302 N. Y. 96) between the plaintiff and her husband who are parties to the present action. A brief preliminary reference to the prior litigation may clarify our problem.
The prior case, cited above, was an action by the present plaintiff for separation. During the pendency of that action an order was made enjoining the present defendant husband — until the entry of final judgment in the separation action —
The present action is by the plaintiff wife, her demand being a judgment declaring that she is the lawful wife of the defendant Garvin; that the Virgin Islands decree procured by the defendant husband is invalid, and that the alleged marriage between the two defendants is null and void. Neither of the defendants in the present action has interposed an answer but each has moved to dismiss the complaint.
At Special Term, in response to the defendants’ motions, the plaintiff’s amended complaint for a declaratory judgment was dismissed upon the ground that the judgment of separation is conclusive upon the plaintiff and the defendant husband that there is an existing valid marriage between them. At the Appellate Division the judgment at Special Term dismissing the complaint was affirmed, two Justices dissenting. From the judgment entered upon the order of the Appellate Division the plaintiff wife has appealed to this court as of right.
As the case comes to us on appeal from a judgment dismissing the complaint on motion by the defendants, we accept as true the material allegations of fact contained in the complaint and any reasonable inference that may be drawn therefrom (Nevins, Inc., v. Kasmach, 279 N. Y. 323, 325).
Applying that rule to the amended complaint in the present action, the following appears from allegations contained therein and from an affidavit served in support of defendants’'motion to dismiss the complaint made upon the ground that there is an existing final judgment of the Supreme Court of New York rendered on the merits determining the same cause of action as stated in the amended complaint herein (Rules Civ. Prac.,
That plaintiff and the defendant Garvin were married on July 23, 1929, and ever since have been residents of the State of New York; that on October 19, 1949, plaintiff instituted against her husband — the present defendant Garvin — an action for separation; that in the separation action plaintiff’s husband as defendant appeared generally, served a verified answer which admitted his marriage to the plaintiff and their residence in the State of New York, and consented to a decree of separation with reasonable provision for alimony; that in said separation action evidence was taken in open court and thereupon on June 13, 1951, the plaintiff was awarded a judgment of separation with incidental support and maintenance against the defendant who, it was adjudged, had abandoned the plaintiff; that in the meantime, while the marital domicile of the plaintiff and the defendant Garvin was in the State of New York, and while the separation action mentioned above was pending and undetermined, the defendant went to the Virgin Islands and, on May 27,1950, procured in the United States District Court of the Virgin Islands a decree of divorce from the plaintiff in an action prosecuted in defiance of injunctive court orders made during the prosecution of the action of Garvin v. Garvin (supra); that the present plaintiff was not served personally in said divorce action within the jurisdiction of the Virgin Islands court and did not appear therein either personally or by attorney and never submitted herself to the jurisdiction of that court; that upon obtaining said decree of divorce — which he at no time interposed as a defense in his wife’s separation action — the defendant Garvin left the Virgin Islands, returned to New York, and, on or about June 26, 1950, allegedly married the defendant Euth Miller Mitchell in the State of Vermont; that after said alleged marriage the defendants returned to the State of New York where they have ever since resided as alleged husband and wife, and where they are holding themselves out as Mr. and Mrs. George K. Garvin.
Plaintiff’s prayer for relief, in the form of a declaratory judgment, is addressed to the court’s discretion, the statutory scope of which is broad: “ If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory
In the circumstances disclosed by this record we cannot say that the following decision at Special Term, affirmed at the Appellate Division, was an abuse of the discretion reposed in those courts: “ A declaratory judgment is unnecessary. The judgment of separation is conclusive upon the plaintiff and the defendant husband that there is an existing valid marriage between them and that the Virgin Islands divorce decree is void [citing cases]. There is no cause of action against the defendant Mitchell.”
The primary fact to be established in Garvin v. Garvin (supra) — the separation brought by the present plaintiff against the present defendant Garvin — was the existence of a valid marriage between the parties (Fischer v. Fischer, 254 N. Y. 463, 466). It thus follows, as a matter of law, from the judgment rendered in plaintiff’s favor on June 13, 1951, in that action — wherein the defendant husband had appeared and had consented to a judgment of separation — that on that date the present defendant Garvin was the plaintiff’s husband.
We are thus led to conclude that in the present action a declaration of the marital status of the plaintiff and the defendant Garvin is unnecessary and, being so, the denial of a declaratory judgment to that effect was within the statutory discretion reposed in the courts below. (Hollister v. Hollister, 288 N. Y. 528; and see Goshin v. Goshin, 279 App. Div. 668.)
Likewise we conclude that the complaint herein does not state a cause of action against the defendant Mitchell (Somberg v. Somberg, 263 N. Y. 1, 4-5; Baumann v. Baumann, 250 N. Y. 382, 386-389).
The judgment should be affirmed, without costs.
Conway, Desmond, Dye, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Van Voorhis, J., taking no part,
Judgment affirmed,
