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DOLORES LAMB (12/22/69)

FAMILY COURT OF NEW YORK, NEW YORK COUNTY 1969.NY.44061 <http://www.versuslaw.com>; 307 N.Y.S.2d 318; 61 Misc. 2d 1032 December 22, 1969 DOLORES LAMB,*FN* Finkelstein & Robinson (Miriam M. Robinson of counsel), for petitioner. Mitchell Salem Fisher & Wang (Mitchell Salem Fisher of counsel), for respondent. Isidore Levine, J. Author: Levine


Isidore Levine, J.

Author: Levine

 The petitioner herein seeks support from the respondent for herself and three children of the parties hereto, based upon a cermonial "marriage" entered into between the parties in Connecticut on September 23, 1954. On that day respondent's "prior" wife, Marjorie, was alive, but mentally incompetent, in an institution.

However, prior to that date, and on August 24, 1954, respondent obtained a unilateral Mexican divorce from Marjorie. Accordingly, petitioner claims that her subsequent marriage to respondent on September 23, 1954 was a legal marriage.

Respondent contends that his unilateral Mexican divorce from Marjorie without her consent (since she was incompetent, she could give none) was a complete nullity, and hence his subsequent "marriage" to petitioner, while Marjorie was still alive, is a complete nullity.

Petitioner counters this argument by asserting that respondent is estopped from denying the validity of the Mexican divorce since it was he who procured it, and secondly, that she was misled by respondent into believing that his Mexican divorce was valid and effective in dissolving his prior marriage to Marjorie, so as to enable him to be legally married to petitioner.

Relevant on this issue are the precise facts surrounding the securing of the Mexican divorce. The undisputed testimony adduced at the trial reveals that respondent (in the company of petitioner) went to Mexico City, not for the purpose of residing there, where he consulted a lawyer and where he signed papers for a divorce, which were mailed to Juarez, where the divorce decree was issued shortly thereafter. Respondent never went to Juarez nor appeared in any court in Juarez. (It is significant to note that Mexico City is a great distance away from Juarez, and that Mexico City and Juarez are in different States in Mexico.) After signing the papers in Mexico City, respondent (with petitioner) returned shortly thereafter to New York where respondent resided and maintained his professional practice, and where he continues to reside and practice to the present day. Several issues are now presented to the court.

1. Are the parties legally married because the respondent's Mexican decree was valid, and, if not, is the respondent estopped from denying the validity of his Mexican divorce?

2. If the parties are not legally married, are the three children illegitimate, and, if so, does the Family Court have the power to declare the legitimacy of the children for the purpose of support and for other purposes?

3. If the petitioner is not the legal wife of the respondent, is she entitled to any support for herself, and, if not, what is the proper amount for the support of the three children alone?

4. If the petitioner is found not to be the legal wife of the respondent, is her attorney entitled to counsel fees for services rendered in this case for her alone, as separated from services rendered on behalf of the children, and, if not, what is the proper amount of counsel fees for services rendered to the three children only?

The court will endeavor to answer these questions in the order hereinabove presented.

1. After a thorough and painstaking review of the legal authorities and precedents for the knotty issues presented herein involving, amongst other things, the serious and vexatious question of estoppel against a jurisdictional attack on a foreign decree of divorce, the court concludes, based upon the law and the facts as found herein, that the parties hereto are not legally married, since at the time of their attempted marriage to each other on September 23, 1954, the respondent had a prior wife alive (Marjorie) between whom there was no legal divorce, since the Mexican divorce decree obtained by the respondent on August 24, 1954 against Marjorie was a complete nullity, and as such beyond the ability of the doctrine of estoppel to revive.

Decisive of the conclusion herein, albeit, a 4-to-3 decision, is the case of Rosenbaum v. Rosenbaum (309 N. Y. 371, 376) where the court held: "this Mexican divorce action -- a clear legal nullity under the allegations of plaintiff's complaint, and of no more validity than a so-called mail-order divorce, from which we said 'no rights of any kind may spring' (Caldwell v. Caldwell [298 N. Y. 146], 151) -- is controlled by valid precedent in our court." (Italics, the court's.)

Again, in the Rosenbaum case (supra, p. 377) the court stated: "If, in fact, defendant obtains a Mexican divorce and thereupon enters into a subsequent marriage, plaintiff need have no fear for her property rights and marital status under New York law".

In the Rosenbaum case (supra) the court was called upon to find as a fact (since the issue was presented to the court on respondent's cross motion to dismiss plaintiff's complaint for an injunction against respondent's prosecution of his divorce action in Mexico) that defendant appeared in Mexico on November 5, 1954 solely for the purpose of signing divorce papers and not for the purpose of residing there, remaining at all times a resident and domiciliary of New York, wherein he continues to reside and practice his profession, and that he has been physically present here since November 7, 1954 (p. 374).

So, too, in the case at bar, the court finds on the evidence that the respondent was in Mexico City for the purpose of signing divorce papers, preparatory to securing a divorce decree, not in Mexico City, but in Juarez, Mexico, an entirely different city and State, thereby making the divorce in the instant case, even more void, if such comparison be possible, than the divorce which was attempted to be secured in the Rosenbaum case. In addition, the court finds as facts, based upon the evidence, that the respondent herein did not appear in Mexico for the purpose of residing there, and remained at all times a resident and domiciliary of New York State to which he returned ...


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