Peri v. Groves

183 Misc. 579, 50 N.Y.S.2d 300, 1944 N.Y. Misc. LEXIS 2313
CourtNew York Supreme Court
DecidedJune 7, 1944
StatusPublished
Cited by5 cases

This text of 183 Misc. 579 (Peri v. Groves) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peri v. Groves, 183 Misc. 579, 50 N.Y.S.2d 300, 1944 N.Y. Misc. LEXIS 2313 (N.Y. Super. Ct. 1944).

Opinion

Shientag, J.

The motion is by plaintiff, the former wife of the defendant, for summary judgment against him in the sum of $9,000 pursuant to an amended final judgment and decree of the First Judicial District Court, County of Ormsby, State of Nevada, in the divorce action between the parties.

Plaintiff and defendant were married in 1934. There was one child of the marriage, a son. In 1937, plaintiff sued defendant for divorce in the First Judicial District Court of Nevada. Defendant, although not a resident of, or domiciled in, that State, appeared generally in the action by Nevada counsel, George Springmeyer, Esq. On June 12, 1937, the Nevada court rendered its final judgment and decree of absolute divorce.

The final judgment awarded to plaintiff the sum of $135,000 in lieu of all claims for alimony, counsel fees and costs of the suit; it awarded custody of the child to the parties jointly and equally, directed the defendant to make annual payments of $3,000 to the plaintiff for the support of the child (in addition to other expenses in connection with the child’s education and upbringing) and contained various other provisions, including provisions for arbitration in New York of disputes with respect to the child and for the giving of all notices concerning the child to the respective parties at stated addresses in New York City. The judgment further provided that neither party shall have “ the right, claim or interest of any kind, nature or character whatsoever against the person, property or estate of the other, growing out of or that she or he may have acquired or possessed, or may in the future acquire or possess by virtue of the marriage of plaintiff and defendant, save and except as herein ordered by this court.”

The Nevada District Court did not, in the final judgment of June 12, 1937, make any express reservation of the right to modify or amend. The defendant has complied with the provisions of that judgment. In the spring of 1940, defendant’s [581]*581New York lawyer advised Mr. Springmeyer that plaintiff contemplated making application to modify the final judgment and decree of divorce and notified Springmeyer that he was without •authority to represent the defendant.

Thereafter, on August 2, 1940, plaintiff’s attorney served upon Mr. Springmeyer two notices of motion in the divorce action, to amend and modify the final judgment and decree by, among other things, awarding sole custody of the child to the plaintiff, increasing above $3,000 annually the provision for payments by defendant for the support of the child and awarding to plaintiff a counsel fee in connection with the preparation of the applications to amend and modify.

Plaintiff’s applications to modify were never served upon defendant within or without the State of Nevada and were never mailed to him, nor was any notice thereof given to him at the address in New York City designated in the original 1937 final judgment. Mr. Springmeyer informed the defendant’s New York lawyer of the “ service ” of the applications and was advised by the latter that he, Springmeyer, had no authority to enter a general appearance on behalf of the defendant on the hearing of the motions, but he directed Springmeyer to appear for the defendant specially and object to the jurisdiction of the court.

On July 14, 1941, Springmeyer appeared specially in the District Court and stated his objection to the court’s jurisdiction, whereupon the court set a date for argument. On that date Springmeyer appeared specially on behalf of defendant. As Mr. Springmeyer’s affidavit states: 1 ‘ Counsel for plaintiff and your affiant on behalf of defendant orally argued the court’s jurisdiction to hear the motion. Briefs on the law were submitted by both sides. No testimony was taken at said hearing. No transcript of argument was made. The court held no trial of the facts upon which the jurisdiction was based. On the same date and immediately upon the conclusion of the said oral argument, the said court overruled the defendant’s objection to the jurisdiction and set a date for the hearing of the motions of the plaintiff on the merits. ’ ’

Thereafter Mr Springmeyer, acting on the instructions of the defendant’s New York lawyer, filed defendant’s petition in the Supreme Court of the State of Nevada (the highest court of the State) for a writ of prohibition restraining the District Court from further proceeding with respect to the plaintiff’s applications. Defendant’s petition for a writ of prohibition was dismissed, with an opinion which will later be discussed (Ex Rel. Groves v. District Court, 61 Nev. 269).

[582]*582Mr. Springmeyer then took no further steps and did not otherwise participate specially or generally in any proceedings in the Nevada courts with respect to plaintiff’s motions to modify. Subsequently, both oral and documentary evidence were introduced in the Nevada District Court on plaintiff’s behalf, in support of her motions, the defendant not being present personally or by an attorney.

The court granted plaintiff’s motions and on July 21, 1942, rendered its “ Modified and Amended Judgment and Decree.” This altered the original judgment of 1937- in a number of material respects. It awarded sole custody of the child to the plaintiff, eliminated provisions for arbitration in New York City, contained an express provision reserving further jurisdiction in the court with respect to the support and maintenance of the child, and increased from $3,000 annually to $5,000 a year, payable semi-annually, the amount which the defendant was required to pay for the support and maintenance of the child. It further adjudged and decreed that defendant pay the plaintiff the sum of $6,000 as and for counsel fees for the preparation and presentation of her motions to modify. The instant suit is brought to recover a total of $9,000, of which $6,000 represents the counsel fees and $3,000 the increased amount for the support of the child for a period of a year and a half.

To what extent are the courts of New York required to give full faith and credit to the amended judgment of the District .Court of Nevada, which is the basis of this action? Were the modifications of the final judgment of -1937, in whole or in part, violative of due process? May the determination of jurisdiction by the Nevada court be collaterally attacked in this action, in whole or in part, or will such determination, even if erroneous, be treated by our courts as res judicataf

Before considering these questions, it would be well to take up the opinion of the Supreme Court of Nevada on its dismissal of the defendant’s petition for a writ of prohibition. The ratio decidendi was that a Nevada divorce decree, under the statute of that State, is never final with respect to custody, and that since the action for that purpose is a continuing one, an application to modify the provisions relating thereto may be made on reasonable notice to the other party concerned. It held on the conceded facts that service on the defendant’s original attorney of record constituted such reasonable notice. The court also held, on the authority of a well-considered dictum in an earlier decision, that where the District Court has the right to modify, it is incidentally authorized to direct an allowance [583]*583to the wife for counsel fees. (Fleming v. Fleming, 58 Nev. 179.)

The opinion goes on to distinguish between the power of the Nevada court to modify a divorce decree with respect to custody of the child, and with respect to its support.

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Bluebook (online)
183 Misc. 579, 50 N.Y.S.2d 300, 1944 N.Y. Misc. LEXIS 2313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peri-v-groves-nysupct-1944.