Wilkov v. Wilkov

13 A.D.2d 471, 212 N.Y.S.2d 91, 1961 N.Y. App. Div. LEXIS 12052

Opinion

Final order entered on April 1, 1960, insofar as appealed from, unanimously reversed on the law and a new trial ordered, without costs, and with leave to the petitioner to apply in the Domestic Relations Court for a new or continuing temporary order for her support pending the outcome of the new trial. There is no doubt that the Domestic Relations Court, as an incident to the exercise of its jurisdiction on petitions charging nonsupport, may determine whether the parties are husband and wife (Sierra v. Sierra, 8 A D 2d 708; Loomis v. Loomis, 288 N. Y. 222; cf. Restatement, Judgments, § 71, especially Comments a and e). Nor is there any doubt that a divorce decree rendered in another State purporting to dissolve the wife’s prior marriage may, in a proper case, be collaterally attacked on jurisdictional grounds where it is shown that the first husband was not personally served with process and did not enter a personal appearance in the divorce action (Fischer V. Fischer, 254 N. Y. 463; Williams V. North Carolina, 325 U. S. 226). Settle order on 10 days’ notice. Concur — Breitel, J. P., McNally, Stevens, Eager and Steuer, JJ.