261 A.D. 693 | N.Y. App. Div. | 1941
This is an action for declaratory judgment brought by a wife aga-'nst her husband. Defendant procured a divorce in Nevada without personal service of process upon plaintiff. Plaintiff seeks to have her rights as the lawful wife of defend
In view of all the circumstances, we think that the amount of alimony should be modified by reducing the amount provided for the support of the plaintiff wife from $12,000 to $10,000 per annum; and that the amount fixed for the support of the daughter should remain at the sum of $3,000 per annum. Upon the defendant’s appeal the judgment is modified accordingly.
Special Term found as a fact that the plaintiff and the defendant were husband and wife; that the defendant’s attempt to obtain jurisdiction in the court of Nevada was without service of process upon the present plaintiff; that the judgment issued by the court of Nevada was merely colorable, and although it made conclusions of law to the effect that such judgment was invalid and of no force, it declined to enter a judgment declaring that said Nevada divorce was void, or that plaintiff was the lawful wife of the defendant.
We think that the plaintiff was entitled to declarations in the judgment to the effect mentioned. (Baumann v. Baumann, 250 N. Y. 382; Lowe v. Lowe, 265 id. 197.) Her complaint sought such relief, and the right thereto was not disputed. We do not think it is sufficient to say that the findings of fact and conclusions of law upon examination would indicate plaintiff’s marital status.
We find no reason to disturb the decision of the trial court, except as above indicated.
The judgment should be modified in accordance with the foregoing per curiam, and as so modified affirmed, without costs.
Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.
Judgment unanimously modified in accordance with opinion, and as so modified affirmed, without costs. Settle order on notice.
