Kulaka v. Fire Department Article I Pension FundKulaka v. Fire Department Article I Pension Fund
— In аn action for a judgment declaring the plaintiff’s entitlement to a pеnsion under a Pension Fund of the Fire Department of the City of New York, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Spodek, J.), entered February 19, 1988, as denied her motion for summary judgment.
Ordered that the order is affirmed insofar as appealed from with onе bill of costs to the respondents appearing separately and filing separate briefs.
Charles Kulaka was appointed to the Fire Department of the City of New York in March 1937. In September 1937 he marriеd the plaintiff Estelle Kulaka. In March 1957 Charles retired from the Fire Depаrtment. He left Estelle and their five children and moved to California in October 1960. Sometime in May of 1970, Charles commenced an action for а divorce against Estelle in the Superior Court of California, County of Los Angeles. On June 24, 1970, process was served on Estelle by the Deputy Sheriff of thе City of New York. Estelle did not interpose an answer or appeаr in the divorce action.
On December 2, 1970, the Superior Court of California granted an "Interlocutory Judgment of Dissolution of Marriage” which stated in pertinent part: "This interlocutory judgment does not constitute a final dissоlution of marriage
Charles married Lou Inez Grimsely in Nevada on Jаnuary 16, 1971, before the interlocutory judgment dissolving his marriage to Estelle beсame final. Charles and Inez lived together until his death on March 1, 1987.
Thereafter, Estelle and Inez each applied to the defendant Fire Department Article I Pension Fund (hereinafter the fund) for an award of a widow’s pension in accordance with Administrative Code of the City of New York § 13-309 (a). The administrators of the pension fund were unable to determine еntitlement to the pension and refused to pay either party.
Estelle then commenced this action seeking, inter alla, a declaration of her entitlement to the pension. Following the joindеr of issue, both Estelle and Inez moved for summary judgment claiming entitlement to the pension as a matter of law.
The Supreme Court found that Estelle had no right to the pension as a matter of law because the California judgment of divorce was valid and entitled to full faith and credit.
The cоurt also denied Inez’s motion for summary judgment, finding triable issues of fact regarding the validity of her marriage to the decedent.
It is well settled that a foreign divorce judgment made in an action in which. both parties were subjeсt to the personal jurisdiction of the court is entitled to full faith and crеdit by the courts of this State (see, Williams v North Carolina,
Since the plaintiff does not cоntest the form and substance of the substituted service or dispute that California was the domicile of Charles Kulaka at the time the judgment of divorce was granted, she lacks the requisite grounds to challenge its validity. In view of the fact that the marriage of Charles and Estelle Kulaka was effectively terminated, she has no claim to the widow’s pension.