247 A.D. 813 | N.Y. App. Div. | 1936
In an action to annul a marriage, order awarding defendant alimony pendente lite and counsel fee affirmed, with ten dollars costs and disbursements. On March 3, 1928, the plaintiff married one Emma Sperry Van Dover in the city of New York. On June 1, 1933, a Mexican decree of divorce was obtained, and on June 17, 1933, the plaintiff married the defendant. He now seeks annulment of this marriage on the ground that the Mexican decree of divorce from Emma Sperry Van Dover was void and ineffectual to dissolve the marriage. The Mexican decree was void (Matter of Alzmann v. Maher, 231 App. Div. 139), and it follows that the subsequent marriage of the parties to the action is also void. But these Mexican decrees are obtained upon the written consent of both parties; and even though plaintiff merely consented to the issuance of the decree, he was, by his consent, instrumental in its procurement. A party seeking affirmative relief may not be heard to impeach, for want of jurisdiction, a foreign decree of divorce which he himself was instrumental in having entered in his favor. (Brown v. Brown, 242 App. Div. 33; Starbuck. v, Starbuck, 173 N. Y. 503; Kelsey v. Kelsey, 204 App. Div. 116; affd., 237 N. Y. 520.) Defendant is entitled to alimony and counsel fee. Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.
