53 A.D.2d 608 | N.Y. App. Div. | 1976
In a matrimonial action, (1) plaintiff appeals from an order of the Supreme Court, Queens County, dated August 11,. 1975, which, after a hearing, (a) granted defendant’s motion for a money judgment for arrears in alimony, (b) awarded defendant a counsel fee and (c) denied his cross motion inter alia to strike the alimony provisions of a judgment of divorce dated June 7, 1971 or, in the alternative, to vacate the said judgment in its entirety, (2) defendant cross-appeals, on the ground of inadequacy, from so much of said order as awarded her the counsel fee and (3) plaintiff appeals from a judgment of the same court, entered August 13, 1975, for the arrears. Order modified, on the law, by deleting the first and third decretal paragraphs thereof and substituting therefor provisions that (1) defendant’s motion for a judgment for arrears is denied and (2) plaintiff’s cross motion is granted to the extent that the judgment of divorce dated June 7, 1971 is vacated. As so modified, order affirmed, without costs or disbursements. Judgment reversed, on the law, without costs or disbursements. In June, 1971 plaintiff secured a divorce from defendant in the Supreme Court, Queens County, on the ground of defendant’s abandonment of him for a period in excess of two years. Judgment was entered pursuant to a stipulation in open court under which, inter alia, defendant withdrew her answer and was awarded alimony in the amount of $500 per month, "plus taxes”. In February, 1975 defendant moved to enforce the judgment as respects arrears in alimony payments. Plaintiff thereafter cross-moved for various relief, including vacatur of the divorce decree for lack of subject matter jurisdiction. Special Term granted defendant’s motion and denied the cross motion. We disagree. It is virtually undisputed that plaintiff did not meet the statutory residence requirements necessary to maintain an action for divorce in this State. The parties, British subjects, had been married in England; the abandonment had occurred in England; defendant had never resided in the United States; and plaintiff had not resided within this State for a continuous period of at least two years immediately preceding the commencement of the action, as required by subdivision 5 of section 230 of the Domestic Relations Law, the applicable statute. These statutory residence requirements have been deemed jurisdictional in nature and, in Eckert v Eckert (34 AD2d 684), this court expressly held that the failure to meet such requirements deprived the court of jurisdiction over the subject matter of the action (see, also, Langerman v Langerman, 303 NY 465, 470-471). In other words, since the Supreme Court’s jurisdiction in matrimonial actions is limited to such powers as are expressly conferred by statute, and as the applicable statute provides that a matrimonial action may only be maintained when certain residency requirements are met, noncompliance therewith leaves the court without any power to act judicially upon the matrimonial status or res. It is a well-settled rule that subject matter jurisdiction, otherwise nonexistent, may not come into being through waiver or estoppel (Matter of Newham v Chile Exploration Co., 232 NY 37). It may not be conferred by consent or agreement of the parties, and the objection as to lack of subject matter jurisdiction may be raised at any time (O’Donoghue v Boies, 159 NY 87; Eckert v Eckert, supra). "No court or judicial officer can acquire jurisdiction by the mere assertion of it, or by erroneously
The issue of jurisdiction more often arises in cases testing the recognition of sister State divorces in the forum, but the principle remains the same (cf. Statter v Statter, 2 NY2d 668; Zizzi v Zizzi, 33 AD2d 926).