Frankel v. Frankel

262 A.D. 770, 27 N.Y.S.2d 903, 1941 N.Y. App. Div. LEXIS 5800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1941
• Status: Published

Opinion

Appeal by defendant from an order denying her motion to modify a final judgment annulling a marriage pursuant to Domestic Relations Law, section 7, subdivision 5. Order affirmed, without costs and without prejudice to an application by defendant at Special Term to vacate the judgment and to enter a new judgment which shall make appropriate provision for her suitable care and maintenance during life, as provided by statute (Domestic Relations Law, § 7, subd. 5) and shaE direct that the children of the marriage are the legitimate children of plaintiff and defendant. The judgment was vaHdly entered as provided by that section. Lazansky, P. J., CarsweE, Johnston and Adel, JJ., concur. Hagarty, J. (dissenting). I dissent and vote to reverse the order and to grant the motion to the extent of aEowing the defendant a suitable counsel fee for services rendered and to be rendered, to vacate the final decree of annulment and to remit the matter to the Special Term to make a new decree providing, in addition to the provisions contained in the decree appealed from, that the issue of the marriage are the legitimate chEdren of both parties, and for aümony in a proper sum, to be determined upon proof adduced by reference or otherwise, for the support and maintenance of the wife. The decree should also provide for security for the suitable care and maintenance of defendant during her Efe, in the language of subdivision 5 of section 7 of the Domestic Relations Law, and in accordance with the further provisions of that statute as to filing and recording, and in an amount to be determined in accordance with proof adduced, by reference or otherwise. The decree of annulment, in faEing to provide for the care and maintenance of the defendant and in Emiting the effect of the security to payments to the State Department of Mental Hygiene while defendant was confined in a State institution, violated the provisions of subdivision 5 of section 7 of the Domestic Relations Law. The judgment should be vacated in the interest of justice. (Ladd v. Stevenson, 112 N. Y. 325.) The making of a new decree wiE render avaEable the reservations of power contained in sections 1140, 1140-a and 1169, Civil Practice Act, which were inappEcable to the final judgment theretofore entered. (See my opinion in Cohen v. Cohen, ante, p. 765, decided herewith.)