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ALMA WHITAKER v. DONALD L. WHITAKER (04/24/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


April 24, 1969

ALMA WHITAKER, APPELLANT,
v.
DONALD L. WHITAKER, RESPONDENT

Appeal from an order of the Supreme Court at Special Term, entered May 3, 1968 in Ulster County, which denied plaintiff's motion for temporary alimony and counsel fees, and granted defendant's cross motion to dismiss so much of the complaint as seeks support and maintenance.

Staley, Jr., J. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Cooke, JJ., concur in memorandum by Staley, Jr., J.

Author: Staley

In this separation action brought by the appellant against her husband, the appellant sought temporary and permanent alimony. The parties were married in 1961 in Dutchess County, New York, and thereafter resided in Dutchess and Ulster Counties. Marital difficulties arose in the spring of 1967, and the respondent resigned from his employment and moved to Florida in June, 1967 where the appellant concedes he acquired domicile. Apparently he left no property in the State of New York. This action was commenced on January 2, 1968 with the service of the summons and complaint being effected by personal service on the respondent in the State of Florida. On February 9, 1968 the Circuit Court in and for Okaloosa County, State of Florida, granted a decree of divorce to the respondent. The appellant contends that service having been effected personally upon the respondent in the State of Florida, the court acquired in personam jurisdiction over the respondent which would enable the court to award alimony and counsel fees. The basis of this contention is that CPLR 302 was intended to enlarge the in personam jurisdiction of the State courts and that the United States Supreme Court decisions have expanded the bases of jurisdiction. The appellant's view finds no support in the law. While CPLR 302 expanded the circumstances in which in personam jurisdiction might be obtained, its effect is limited only to the situations enumerated therein, and matrimonial actions are not included. It being conceded that the respondent has a bona fide domicile in the State of Florida, CPLR 302 is inapplicable to permit the court to exercise personal jurisdiction over the respondent. (Tarshish v. Tarshish, 27 A.D.2d 909; Weiss v. Weiss, A.D.2d 824; Cockrum v. Cockrum, 20 A.D.2d 642; Lussier v. Lussier, 56 Misc. 2d 532.)

 Disposition

Order affirmed, without costs.

19690424

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