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MATTER RICHARD V. CLARKE v. MARTIN V. WATERS (12/11/69)

December 11, 1969

IN THE MATTER OF RICHARD V. CLARKE, RESPONDENT,
v.
MARTIN V. WATERS, APPELLANT, AND GLORIA C. WATERS, RESPONDENT



Concur -- Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.

The Special Term was without jurisdiction to direct the nondomiciliary respondent-appellant stepfather to make available for visitation the petitioner father's child. The child is not within this State. Personal jurisdiction was not obtained over the respondent mother, a foreign domiciliary and the infant's sole legal custodian. A marital res is not extant in this jurisdiction nor does there exist a New York decree affecting a marital res. Cases such as Matter of Kades (23 Misc. 2d 222 [McGivern, J.], affd. 10 A.D.2d 919) and May v. May (233 App. Div. 519, 520) are inapplicable. While in those cases the infant was outside the jurisdiction, there was personal jurisdiction in the proceeding over both parents by virtue of domicile.

Disposition

Order appealed from entered September 25, 1969, unanimously reversed, on the law, and the petition dismissed, with $50 costs and disbursements to respondent-appellant.

19691211

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