
    Rue Magowan, Appellant, v. Edward S. Magowan, Respondent.
    Argued February 22, 1967;
    decided April 6, 1967.
    
      
      Richard Ives Rudell and Sidney II. Zuckerman for appellant.
    I. The Alabama decree rendered in a divorce action in which both spouses appeared is valid on its face. Under the full faith and credit clause of the United States Constitution, the Courts of New York cannot permit a stranger to such a decree to attack same on jurisdictional grounds and is res judicata. (Williams v. North Carolina, 317 U. S. 287, 325 U. S. 226; Sherrer v. Sherrer, 334 U. S. 343; Coe v. Coe, 334 U. S. 378; Johnson v. Muelberger, 340 U. S. 581; Cook v. Cook, 342 U. S. 126; Sutton v. Leib, 342 U S. 402; Shea v. Shea, 270 App. Div. 527; Rosenstiel v. Rosenstiel, 16 N Y 2d 64; Weisner v. Weisner, 17 N Y 2d 799.) II. It is incumbent on the part of defendant to plead and prove that Alabama permits a collateral attack under the circumstances existing in the instant case and that such attack was brought within one year. (Klarish v. Klarish, 38 Misc 2d 326, 19 A D 2d 170, 14 N Y 2d 662; Phillips v. Phillips, 15 Misc 2d 884; Coster v. Coster, 289 N. Y. 438; Aiello v. Aiello, 272 Ala. 505; Tarlton v. Tarlton, 262 Ala. 67; Gordon v. Ross, 63 Ala. 363.) III. The courts of the State of New York lack the power to vitiate the judgment of divorce granted by the State of Alabama to plaintiff against her husband, Seymour Blair; and, additionally, because Seymour Blair, although available and purportedly within the jurisdiction of the State of New York, was not joined as a party; and since more than one year had elapsed between the knowledge by defendant of the pertinent facts concerning the alleged invalidity of plaintiff’s divorce from Seymour Blair and the time when defendant took action by interposing the counterclaim. (Astor v. Astor, 6 Misc 2d 967; Hartigan v. Hartigan, 272 Ala. 67.) IV. The trial court did not have the power to grant the annulment of the marriage between the parties hereto which was solemnized in Arkansas in 1957 and to vitiate the Alabama decree of divorce because of respondent’s laches, default and inequity and by reason of equitable estoppel. (Guibord v. Guibord, 2 A D 2d 34; Presbrey v. Presbrey, 6 A D 2d 477, 8 N Y 2d 797; Packer v. Packer, 6 A D 2d 464; Davis v. Davis, 279 N. Y. 657;Landsman v. Landsman, 302 N. Y. 45; Rosenstiel v. Rosenstiel, 21 A D 2d 635, 16 N Y 2d 64; Stokes v. Stokes, 198 N. Y. 301; Lynn v. Lynn, 302 N. Y. 193; Weiner v. Weiner, 13 A D 2d 937.) V. The annulment decree granted herein is so completely unsupported by the evidence adduced that the granting of same denied plaintiff due process of law to which she was entitled under the Federal Constitution. (Schwabe v. Herzog, 161 App. Div. 712; Burnes v. Scott, 117 U. S. 582; Dodge v. Dodge, 98 App. Div. 85; Matter of Fleischer, 192 Misc. 777; Glaser v. Glaser, 276 N. Y. 296; Matter of Rhinelander, 290 N. Y. 31.) VI. Plaintiff was a domiciliary of Alabama in 1955 when she obtained her divorce decree in Alabama. (Matter of Benjamin, 176 Misc. 518, 263 App. Div. 981, 289 N. Y. 554; Gee v. Gee, 252 Ala. 103; McCary v. McCary, 253 Ala. 468; Richardson v. Richardson, 258 Ala. 423; Pignatelli v. Pignatelli, 169 Misc. 534; Matter of Newcomb, 192 N. Y. 238.) VII. Plaintiff’s causes of action for separation should be severed and remanded for trial inasmuch as the findings reveal that they were not decided on the merits but for the reason that no valid marriage allegedly existed between the parties. (Weisner v. Weisner, 17 N Y 2d 799; Fischer v. Fischer, 254 N. Y. 463.)
    
      Laszlo Kormendi for respondent.
    I. Under the law of Alabama, a bilateral decree of divorce procured through domiciliary fraud is invalid and void for want of jurisdiction over the subject matter of the action and may be collaterally attacked by a subsequent spouse of one of the parties who had nothing to do with the procurement of the decree. (Jennings v. Jennings, 251 Ala. 73; Gee v. Gee, 252 Ala. 103; Hartigan v. Hartigan, 272 Ala. 67; Winston v. Winston, 276 Ala. 303; Levine v. Levine, 262 Ala. 491; Mussey v. Mussey, 251 Ala. 439; Fairclough v. 
      St. Amand, 217 Ala. 19; Goodman v. Goodman, 25 A D 2d 646; Cole v. Cole, 221 Ga. 171.) II. Defendant’s right of collateral attack has not become barred either by estoppel or laches or the running of the Statute of Limitations. (Krause v. Krause, 282 N. Y. 355; Packer v. Packer, 6 A D 2d 464; Weiner v. Weiner, 13 A D 2d 937; Landsman v. Landsman, 302 N. Y. 45; Davis v. Davis, 279 N. Y. 657; Jackson v. Jackson, 274 App. Div. 43; Gruttemeyer v. Gruttemeyer, 285 App. Div. 1185; Newburger v. Newburger, 17 A D 2d 968; Higgins v. Crouse, 147 N. Y. 411; Ectore Realty Co. v. Manufacturers Trust Co., 250 App. Div. 314; Baker v. Cohn, 266 App. Div. 236; Order of Travelers v. Wolfe, 331 U. S. 586; Chittenden v. Chittenden, 64 Misc. 649, 137 App. Div. 932.) III. Neither the full faith and credit clause nor ‘ ‘ comity ’ ’ nor the public policy of this State requires that plaintiff’s decree, illegal and void and subject to collateral attack under the law of Alabama, be given immunity from a similar attack in New York. (Johnson v. Muelberger, 340 U. S. 581; Cook v. Cook, 342 U. S. 126; Hampton v. McConnel, 3 Wheat. [16 U. S.] 234; Halvey v. Halvey, 330 U. S. 610; Williams v. North Carolina, 325 U. S. 226; Rosenstiel v. Rosenstiel, 16 N Y 2d 64; Matter of Johnson, 301 N. Y. 13; Sacks v. Sacks, 47 Misc 2d 1050.)
   Per Curiam.

The plaintiff wife brought this suit against her second husband for a separation and he counterclaimed for an annulment on the ground that she was still married to another at the time she purportedly wed him, the defendant, in 1957. More specifically, the defendant urges that the Alabama decree of divorce which the plaintiff obtained in 1955 from her first husband was jurisdictionally void. For her part, the plaintiff asserts that that decree is entitled to full faith and credit in this State under the Federal Constitution. (IT. S. Const.; art. IV, 81.)

It is settled that when, as in the present case, both parties to an out-of-state divorce appeared in those divorce proceedings, a stranger to the decree may collaterally attack it in our courts only if he establishes that the rendering State permits such an attack. (See, e.g., Weisner v. Weisner, 17 N Y 2d 799; Goldsmith v. Goldsmith, 19 N Y 2d 710; Johnson v. Muelberger, 340 U. S. 581, 587; Cook v. Cook, 342 U. S. 126,128.) The defendant before us has failed to meet the burden thus imposed upon him. Since “ [t]he alleged defect in the jurisdiction of the Alabama court does not appear upon the face of [the] decree ” challenged by the defendant, it is not clear, under Alabama law, whether the defendant, being a stranger to that decree, has standing to attack it. (Weisner v. Weisner, 17 N Y 2d 799, 802, supra; see Aiello v. Aiello, 272 Ala. 505, 509-511.) In this situation, we must accord full faith and credit to the decree. It may be attacked by the defendant, if at all, only in the courts of Alabama.

Accordingly, the defendant’s counterclaim for an annulment must, as the case now stands, be dismissed and, there being no impediment to the wife’s institution of the present suit for separation, the trial court is required to consider the merits of such action. However, if the defendant proceeds in Alabama and there succeeds in vacating the decree divorcing the plaintiff from her first husband, he will then be privilged to reassert his claim for an annulment in the New York courts either by way of a new action or as may otherwise be appropriate.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Supreme Court, New York County, for further proceedings in accordance with this opinion.

Chief Judge Fuld and Judges Yaw Yoorhis, Burke, Scileppi, Bergaw and Keatiwg concur; Judge Breitel taking no part.

Order reversed, etc.  