278 A.D. 847 | N.Y. App. Div. | 1951
Appeals by defendant from a judgment of separation granted plaintiff and from a judgment for arrears in the alimony awarded by the separation decree. Judgment of separation reversed on the law and the facts, without costs, and a new trial granted. The principal issue litigated at the trial was the validity of a decree of divorce from plaintiff obtained by the defendant in the State of Utah in 1945. In our opinion, plaintiff failed to overthrow the presumptive validity of the Utah decree by evidence sufficient to establish that the foreign court lacked jurisdiction because the plaintiff in that action was not a bona fide domiciliary of that State. (Of. Axelrod v. Axelrod, 277 App. Div. 1053, and eases cited therein.) Such evidence, if available, may be supplied on a new trial. In view of the reversal' of the judgment of separation, and upon the stipulation of the parties, the judgment for alimony in arrears is also reversed, without costs. Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur. ,