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Chapman v. Chapman

Supreme Court of New York, Appellate Division

July 8, 1954


Page 505

[Copyrighted Material Omitted]

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APPEAL from an order of the Supreme Court at Special Term (GIBSON, J.), entered April 20, 1954, in Warren County, which denied a motion by plaintiff for summary judgment.


Thomas J. McCarthy and Albert G. Avery for appellant.

Richard J. Bartlett and Louis M. Carusone for respondent.


The plaintiff appeals from an order denying a motion for summary judgment in an action brought to recover upon the alimony provisions of a divorce judgment granted by the courts of the State of Vermont.

The parties were married in New York State on July 28, 1944. They established their marital home in Rutland County, Vermont, in 1945 and remained together until some time in 1949. In September, 1949, the defendant left Vermont and returned to his family's home at Glens Falls, New York. The plaintiff brought an action in the County Court of Rutland County, State of Vermont, on February 14, 1950, for a separation, which is known in Vermont as a divorce from bed and board. In her complaint, the plaintiff sought 'a divorce from bed and board for the limited period of four years', upon various grounds, including nonsupport, and also asked that she be awarded 'separate maintenance out of the estate or property' of the defendant. The defendant was served with the summons and complaint in the Vermont action in New York State. He appeared generally by a Vermont attorney and interposed an answer consisting of a general denial.

Subsequently, a motion was made for temporary alimony and, after a hearing at which the defendant appeared in person, the defendant was ordered to pay $100 monthly during the pendency of the action. A separate action was brought in this State to recover for the arrears under the temporary alimony order. A summary judgment was granted in that action, which is not in any way involved in this appeal.

The plaintiff's Vermont attorney moved the case for trial for November 20, 1951. The defendant was then living temporarily

Page 507

in Pittsburgh and he was notified by telegram by his Vermont attorney of the prospective trial date. The defendant did not respond but the trial in Vermont was adjourned for a month to December 17, 1951, and, on December 12th, the defendant's attorney wrote to the defendant at his Pittsburgh address advising him of the new trial date and stating that, unless instructions were received to the contrary, he would withdraw from the case. No response was received to this letter and, on December 15th, the defendant's Vermont attorney filed a motion for leave to withdraw as the defendant's attorney. In the meantime, on December 13th, the plaintiff had filed with the Clerk of the Vermont County Court a motion to amend her action from an action for divorce from bed and board for four years to one for an absolute divorce and to change the prayer for 'separate maintenance' to one for 'suitable alimony'. This motion was filed in accordance with the local practice and, under that practice, the County Clerk was required forthwith to transmit one copy of the notice to the defendant's attorney.

On December 17, 1951, the adjourned trial date, the Vermont County Court granted the plaintiff's motion to amend, granted the motion of the defendant's attorney to withdraw and then proceeded to hear the plaintiff's case on the merits. The court, on the same day, granted the plaintiff an absolute divorce, decreed to her the real property which the parties had owned by the entirety and further awarded to the plaintiff, in lieu of alimony, the lump sum of $25,000.

In the meantime, the defendant had become a domiciliary of the State of Florida and, on September 14, 1951, he had commenced a divorce action in Florida against his wife by constructive service. She was not served with any process within the State of Florida and she did not appear in the action. The defendant obtained a judgment of divorce in his favor in Florida on November 23, 1951. However, the defendant did not amend his answer in the Vermont court to set up the Florida divorce nor did he take any other steps to bring it to the attention of the court.

Subsequently, the plaintiff brought this action in New York State to recover a judgment in the amount of $25,000 under the alimony provisions of the Vermont divorce decree. The defendant interposed an answer containing denials and various affirmative defenses. The plaintiff moved for summary judgment and, from the denial of that motion, this appeal has been taken.

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The crucial question before us is whether the Vermont judgment was validly rendered in accordance with the requirements of due process of law. If the judgment was a valid one, we are required to give it full faith and credit under the Federal Constitution.

We are of the opinion that the Vermont courts failed to comply with due process of law in the rendition of the judgment against the defendant and that, therefore, we are neither required nor permitted to enforce the ...

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