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JILLIAN CHRESTMAN v. PARKS CHRESTMAN (08/27/69)

SUPREME COURT OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.42784 <http://www.versuslaw.com>; 303 N.Y.S.2d 733; 60 Misc. 2d 780 August 27, 1969 JILLIAN CHRESTMAN, PLAINTIFF,v.PARKS CHRESTMAN, DEFENDANT Jay Julien and Philip J. Kassel for plaintiff. Ritzer & Chwasky and Phillips, Nizer, Benjamin, Krim & Ballon (Theodore H. Friedman of counsel), for defendant. Thomas A. Aurelio, Spec. Ref. Author: Aurelio


Thomas A. Aurelio, Spec. Ref.

Author: Aurelio

 In this action the court is called upon to decide whether or not it has the power to amend a Mexican bilateral decree of divorce obtained by the husband, by inserting therein a provision for the payment of alimony in a case wherein such decree does not provide for the payment of any alimony.

The parties were married on June 23, 1954, and there is no issue of the marriage. On or about May 12, 1961 defendant went to the City of Juarez, Mexico, and obtained a bilateral Mexican decree of divorce from this plaintiff. The decree does not provide for the payment of any alimony.

The complaint herein was served upon defendant on November 21, 1966, and issue was joined by service of defendant's answer on January 4, 1967. Pursuant to notice dated April 10, 1969, and served upon defendant, plaintiff seeks to amend the complaint to allege, among other things:

"D. On the Fourth Cause of Action, that the Mexican judgment and decree of divorce be amended to provide that plaintiff be awarded alimony and counsel fees." Defendant vigorously opposed the amendment upon the trial. The court reserved decision and took the testimony over defendant's objection.

The foregoing application to amend the complaint is now granted, and defendant is deemed to have interposed an answer denying plaintiff's right to such relief.

The complaint served upon defendant alleges three causes of action:

(1) a decree of separation on the grounds of abandonment and nonsupport;

(2) failure to support and maintain the plaintiff; and

(3) a declaratory judgment that the Mexican decree of divorce obtained by defendant is invalid and of no force and effect in law.

During the trial plaintiff withdrew the first, second and third causes of action, and moved to amend the complaint and requested that the Mexican decree of divorce be amended to provide for alimony.

Subdivision (c) of section 466 of the Family Court Act provides:

"if a court of competent jurisdiction not of the state of New York shall enter an order or decree granting alimony or support in any such action, the family court may * * *

(ii) entertain an application to modify the order or decree granting alimony on the ground that there has been a subsequent change of ...


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