50 A.D.2d 785 | N.Y. App. Div. | 1975
Lead Opinion
— Order, Supreme Court, New York County, entered June 18, 1975 modified, on the law, to strike that part of the order which granted defendant’s motion to vacate a judgment of divorce entered March 16, 1970 and the orders modifying that judgment entered on September 16, 1970 and April 15, 1971, the motion denied and the afore-mentioned judgment and orders are hereby reinstated, and as so modified the order is affirmed, without costs or disbursements. Defendant, by her thirty-second attorney, (since the parties’ matrimonial difficulties began) seeks to vacate a judgment of divorce which was granted by the Supreme Court in 1970, affirmed by the Appellate Division in 1972 (Lacks v Lacks, 40 AD2d 764), with leave to appeal to the Court of Appeals being denied by both the Appellate Division and the Court of Appeals (Lacks v Lacks, 31 NY2d 647; mot for rearg den 33 NY2d 644). This long-delayed attack upon the divorce decree is predicated on the ground that the judgment is void because the court lacked subject matter jurisdiction. The factual basis for that contention rests upon testimony contained in the trial transcript which was before this court on prior appeals. However, it is maintained, in accordance with ancient and revered law, that this alleged jurisdictional defect may be raised even at this late date. We find, however, that defendant’s contention lacks merit and that the judgment of divorce had a proper jurisdictional foundation. We note initially, that this is not the first time defendant has sought to raise questions concerning the court’s jurisdiction in this matter. The action herein was first brought in August of 1965, plaintiff then seeking separation on the ground of cruel and inhuman treatment. At that time section 230 of the Domestic Relations Law, provided (insofar as here relevant), that an action for separation could be maintained "Where the parties were married within the state and either the plaintiff or the defendant is a resident thereof when the action is commenced.” (Although the statute uses the term "residence”, such has been construed to be synonymous with "domicile” Usher v Usher, 41 AD2d 368.) The defendant, by her answer, asserted that neither plaintiff nor defendant were residents or domiciliaries of the State of New York and that the court lacked jurisdiction over this action. Although the trial court at that time stated that it had not considered the preliminary issue of plaintiff’s residence — the court, having found insufficient evidence to grant the separation — the issue was thereafter specifically raised on appeal, plaintiff urging that the evidence was sufficient to establish his domicile in New York. Accordingly, when this court (Lacks v Lacks, 29 AD2d 854) reversed the trial court’s dismissal of the complaint and ordered a new trial, of necessity, it was concluded that, at least at the time of the commencement of the action, plaintiff, indeed, was a New York State domiciliary. Thereafter, by the time the second trial was had in November of 1969, the Domestic Relations Law was amended to permit an action for divorce on the ground of cruel and inhuman treatment (Domestic Relations Law, § 170 subd [1]). Accordingly, prior to trial, plaintiff served a notice of intent to amend his complaint to set forth a cause of action for divorce and at trial the motion was made and granted over defendant’s contention that the court lacked jurisdiction to entertain a divorce action. And again on appeal to this court —wherein we affirmed the judgment of divorce — it was argued by the defendant that it was improper to allow amendment of the complaint. But
Dissenting Opinion
I concur in the result reached by the majority. The Supreme Court, New York County, obtained jurisdiction over the original separation action commenced by plaintiff in
Dissenting Opinion
I would affirm the order on appeal insofar as it sets aside a prior judgment of divorce (as subsequently modified) for the carefully considered reasons given by the learned Justice below. However, I would modify said order to the extent that it denied defendant a $5,000 counsel fee; and grant the same. The history of this extensive litigation reveals that plaintiff has paid only a nominal amount for defendant’s counsel fees, primarily because defendant had previously refused to claim a sum exceeding $200,000 available to her in connection with a foreclosure action. That deposit has now been substantially reduced, if not completely exhausted, by liens filed thereagainst. The record before us discloses that defendant is now impoverished, while plaintiff has the means, and the legal obligation, to pay such amount.