Russell v. Russell

Appellate Division of the Supreme Court of New York

Russell v. Russell

27 A.D.2d 563, 276 N.Y.S.2d 49, 1966 N.Y. App. Div. LEXIS 2840

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 19, 1966

StatusPublished

This text of 27 A.D.2d 563 (Russell v. Russell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Russell v. Russell, 27 A.D.2d 563, 276 N.Y.S.2d 49, 1966 N.Y. App. Div. LEXIS 2840 (N.Y. Ct. App. 1966).

Pincite

Opinion

In an action for separation, defendant husband appeals from a judgment of the Supreme Court, Nassau County, entered February 4, 1966, after a nonjury trial, which inter alia granted plaintiff a separation and dismissed defendant’s counterclaim for annulment on the ground of invalidity of a Florida divorce decree which plaintiff had procured against a prior husband. Judgment reversed, on the law, without costs, and new trial granted, with costs (if any) to abide the event. No questions of fact have been considered. The trial court erred in rejecting defendant’s offer of proof to show that a Florida divorce decree obtained by plaintiff against a prior husband, without personal service of process upon him and without appearance by him, was invalid. A collateral attack of this nature is permissible (Williams v. North Carolina, 325 U. S. 226; Cook v. Cook, 342 U. S. 126; Rudyk v. Rudyk, 278 App. Div. 837; Gruttemeyer v. Gruttemeyer, 285 App. Div. 1185; Aspromonte v. Aspromonte, 4 A D 2d 689; Apelbaum v. Apelbaum, 7 A D 2d 911). The Rosenstiel and Wood decisions (16 N Y 2d 64) are not pertinent. Each of the foreign divorce decrees considered therein was granted upon the physical appearance of one spouse and the voluntary appearance of the other spouse, through an authorized attorney. Beldock, P. J., Christ, Hill and Rabin, JJ., concur; Benjamin, J., concurs in the result, with the following memorandum: I am concurring only because I deem myself bound by the prior decisions of this court in Gruttemeyer v. Gruttemeyer (285 App. Div. 1185) and Newburger v. Newburger (17 A D 2d 968). However, I think those decisions (as well as the First Department’s decision in Jackson v. Jackson, 274 App. Div. 43) based their holdings on prior Court of Appeals decisions which were not directly in point (see, e.g., Fischer v. Fischer, 254 N. Y. 463; Lefferts v. Lefferts, 263 N. Y. 131; Davis v. Davis, 279 N. Y. 657; Landsman v. Landsman, 302 N. Y. 45). Further, if I did not consider myself bound by Gruttemeyer and Newburger, I would be inclined to hold that the present defendant is equitably estopped to attack the ex parte Florida divorce obtained by plaintiff from her prior husband with funds supplied by this defendant.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action for separation, defendant husband appeals from a judgment of the Supreme Court, Nassau County, entered February 4, 1966, after a nonjury trial, which inter alia granted plaintiff a separation and dismissed defendant’s counterclaim for annulment on the ground of invalidity of a Florida divorce decree which plaintiff had procured against a prior husband. Judgment reversed, on the law, without costs, and new trial granted, with costs (if any) to abide the event. No questions of fact have been considered. The trial court erred in rejecting defendant’s offer of proof to show that a Florida divorce decree obtained by plaintiff against a prior husband, without personal service of process upon him and without appearance by him, was invalid. A collateral attack of this nature is permissible (Williams v. North Carolina, 325 U. S. 226; Cook v. Cook, 342 U. S. 126; Rudyk v. Rudyk, 278 App. Div. 837; Gruttemeyer v. Gruttemeyer, 285 App. Div. 1185; Aspromonte v. Aspromonte, 4 A D 2d 689; Apelbaum v. Apelbaum, 7 A D 2d 911). The Rosenstiel and Wood decisions (16 N Y 2d 64) are not pertinent. Each of the foreign divorce decrees considered therein was granted upon the physical appearance of one spouse and the voluntary appearance of the other spouse, through an authorized attorney. Beldock, P. J., Christ, Hill and Rabin, JJ., concur; Benjamin, J., concurs in the result, with the following memorandum: I am concurring only because I deem myself bound by the prior decisions of this court in Gruttemeyer v. Gruttemeyer (285 App. Div. 1185) and Newburger v. Newburger (17 A D 2d 968). However, I think those decisions (as well as the First Department’s decision in Jackson v. Jackson, 274 App. Div. 43) based their holdings on prior Court of Appeals decisions which were not directly in point (see, e.g., Fischer v. Fischer, 254 N. Y. 463; Lefferts v. Lefferts, 263 N. Y. 131; Davis v. Davis, 279 N. Y. 657; Landsman v. Landsman, 302 N. Y. 45). Further, if I did not consider myself bound by Gruttemeyer and Newburger, I would be inclined to hold that the present defendant is equitably estopped to attack the ex parte Florida divorce obtained by plaintiff from her prior husband with funds supplied by this defendant.

Cite This Page — Counsel Stack

Bluebook (online)

27 A.D.2d 563, 276 N.Y.S.2d 49, 1966 N.Y. App. Div. LEXIS 2840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-russell-nyappdiv-1966.

Opinion

Related

Cite This Page — Counsel Stack