11 Misc. 2d 1035 | N.Y. Sup. Ct. | 1958
Plaintiff and defendant were married in the town of Pittsford, New York, in 1945, and cohabited in New York State for some 12 years thereafter, until the year 1957. There is one child born of the marriage, a girl approximately 13 years of age. In November, 1957, the wife, defendant in the above-entitled action, commenced against her husband (plaintiff in the above-entitled action) an action for divorce in the First Civil Court, Bravos District, City of Juarez, Mexico. The ground of the action was alleged to be incompatibility. Neither party was ever a resident of Mexico and no process of any kind, out of the Mexican court, in the action therein, was ever served upon the defendant therein named, plaintiff in the above-entitled action. The wife was physically present in Mexico on the 14th of November, 1957. She was there apparently for one day only and on that day the decree was granted. In that decree it was set forth that the husband had appeared in the action by an attorney therein named, and that such attorney joined in the wife’s prayer for relief. The wife remarried in Brie, Pennsylvania, on December 23,1957.
Previous to the institution of the Mexican divorce, the wife’s attorney, who is counsel for her in this action, conferred several times with the husband. There is no claim that any fraud was effected by such attorney upon the husband. The husband was informed that the wife proposed to go to Mexico and secure a divorce and apparently the husband agreed that he would sign and acknowledge whatever papers might be necessary to help the wife secure such Mexican decree. This promise is restated in a separation agreement which was executed by both parties on September 13, 1957. On September 13, 1957, in Monroe County, New York, the husband came to the office of his wife’s
The foregoing statement of the facts in this action makes plain the very narrow question of law to be decided, viz.: Did the Mexican court acquire jurisdiction of the husband so as to make the resulting decree of divorce valid and binding upon him? My conclusion is that it did not.
The contention is made by defendant’s counsel that the husband voluntarily submitted himself to the jurisdiction of the Mexican court by appearing in the action by attorney. While in form he appeared by attorney, I conclude that such attorney was not duly authorized to appear for the husband (Bardonek v. Bardonek, 269 App. Div. 861) and accordingly such appearance by the attorney did not constitute an appearance by the husband in the action. (Molnar v. Molnar, 284 App. Div. 948, affg. 131 N. Y. S. 2d 120; Staedler v. Staedler, 6. N. J. 380; Ann. 28 A. L. R. 2d 1291, 1300; MacPherson v. MacPherson, 1 Misc 2d 1049; Querze v. Querze, 290 N. Y. 13.)
The case of Frost v. Frost (260 App. Div. 694) cited by counsel for the defendant, is distinguishable. In the first place, the power of attorney was under attack because it named to represent the defendant husband in a Nevada action, an attorney whom he had never met and who had been in fact selected by
In our case the choice of an attorney was not only not the independent, uncontrolled choice of the husband, there was not even an attorney named in the so-called power of attorney when he signed it. To hold that an attorney thus appointed is authorized to represent one in an action involving the dissolution of a marriage would be a travesty on justice and repugnant to our public policy. The plaintiff is entitled to a decree, declaring that the so-called Mexican divorce is invalid.
If the plaintiff and the defendant, or either of them, decides to introduce further proof in this action, the court could hear them at this Equity Term which will continue during the week of May 19, at anytime agreeable to both plaintiff’s and defendant’s counsel and convenient to the other engagements of the court. For the purpose of arranging such proof or stipulating that the ■proofs are closed, I direct both counsel to appear before me at Equity Term in the city of Rochester, New York, on May 21, 1958, at 10 o’clock in the morning.