231 A.D. 533 | N.Y. App. Div. | 1931
The plaintiff has brought this action for absolute divorce. She moved at Special Term for counsel fees and temporary alimony. An allowance thereof was made in the order now here on appeal.
It is admitted that the parties were married in this State on December 4, 1926. Defendant in his answer alleges that the parties were divorced in the State of Florida on March 31, 1928, in an action brought by the present defendant as plaintiff; that there was personal service of process within that State on the present plaintiff; that she appeared as defendant in the action personally and by attorney by filing an answer; and that the court thereby acquired jurisdiction to grant the divorce. Further, it appears by affidavits filed by the defendant that prior to the granting of the Florida divorce two written agreements were made between the parties wherein it was provided for the separate maintenance and support of the plaintiff.
If the parties had been legally divorced by the decree of another State the plaintiff would have no cause of action here; and she would not be entitled to temporary alimony or counsel fees, for the existence of a valid marriage is necessary as a basis for her right to make such claim before the courts of this State. (Collins v. Collins, 80 N. Y. 1; Lake v. Lake, 194 id. 179.) Likewise, if there is an existing agreement between the parties for the separate support of the wife the court cannot grant alimony until the contract is set aside or impeached. (Cain v. Cain, 188 App. Div. 780; Davis v. Davis, 195 id. 430.)
The plaintiff in her affidavits denies that she was served with process in the Florida action; and alleges that she never authorized any attorney to appear therein in her behalf. There are circumstances giving color of truth to her denial. The matter' cannot be determined upon affidavits, but the facts must be established on the trial. As to the agreements for separate support, the plaintiff says that the first one was entered into by her through duress and never became operative; and that it was rescinded and abandoned and the parties returned to living together as husband and wife immediately following its execution. The affidavits of the defendant indicate that this is true. The plaintiff says further that the second agreement was not one for permanent separate support and that it in effect was abandoned and became inoperative immediately following its execution. This question also must become the subject of proof on the trial.
The order should be affirmed, with ten dollars costs and disbursements, and payment and collection of the sums granted in the order are stayed for sixty days after entry and service of the order of affirmance.
All concur.
Order affirmed, with ten dollars costs and disbursements, and payment and collection of the sums granted in the order are stayed for sixty days after service of a copy of the order to be entered hereon, with notice of entry.