
    Eleanore M. Loeb, Appellant, v. William Loeb, Respondent.
    Argued May 16, 1958;
    decided June 25, 1958.
    
      
      Alexander G. Dick, Clarence G. Meleney and Robert E. Engel for appellant.
    
      
      Alexis C. Coudert and John W. Dougherty, III, for respondent.
   Froessel, J.

Plaintiff and defendant were married in Connecticut on September 26,1942. Defendant was then a resident of Vermont and plaintiff a resident of New York, though employed as an instructor in equitation and living at a school in Virginia. In 1944 the parties established their matrimonial domicile in the State of Vermont. There they spent all of their married life together, except that in June, 1951 defendant left plaintiff and took up residence in New Hampshire, where he remained until April, 1952. He then moved to Nevada, where he subsequently obtained an ex parte divorce in July, 1952. This decree of divorce made no provision for the support of plaintiff nor for the-custody and support of their child.

Meanwhile, however, while defendant was paying plaintiff $700 per month, the parties were negotiating with respect to property rights, permanent support, maintenance, custody and other matters. According to plaintiff, these negotiations were terminated because she refused to execute a release to the woman whom defendant subsequently married, whereupon he paid $300 for the support of the child only.

On November 15, 1952 plaintiff petitioned the Windham County Court in Vermont seeking custody of the daughter of the marriage. Defendant, after first filing a special appearance, later" appeared generally, pleaded the Nevada divorce as a bar to the action, and asked for custody of the child during the school year. Plaintiff in a reply challenged the validity of defendant’s Nevada divorce and requested that the court make an order (1) for the support of the child, (2) for the support of plaintiff, and (3) for an award of counsel fees (Loeb v. Loeb, 118 Vt. 472, 476). A trial was had in June, 1953 in the County Court.

In August, 1953, while the action was still pending in said court, plaintiff sold their home for $21,800. She thereupon moved to the home of defendant’s mother in Oyster Bay, New York, apparently staying there from October, 1953 through July, 1955, when she purchased a home in Amenia, Dutchess County, New York, for $35,000, a $20,000 mortgage on which was given by defendant’s mother. Plaintiff testified that in October, 1953 she formed the intention to become a resident of the State of New York. As late as August, 1953 she filed her notice of retaining residence in Vermont with the town clerk of Windham. This was more than a year after defendant had secured his divorce.

The Vermont County Court, on March 20, 1954, (1) awarded plaintiff custody of the couple’s daughter, granting defendant visitation rights, (2) ordered defendant to pay $450 a month for the support of the child, (3) directed defendant to pay $350 a month for plaintiff’s support, and (4) ordered defendant to pay $6,289.39 for attorneys’ fees and disbursements. That court also ruled that defendant’s Nevada divorce decree was entitled to full faith and credit.

An appeal was taken to the Vermont Supreme Court in April, 1954 and, in a decision of May 3, 1955, .that court affirmed so much of the County Court order as related to custody and support of the infant as well as the provision for attorneys’ fees and disbursements, agreed that the Nevada divorce was valid, but reversed so much of the lower court determination as related to plaintiff’s support. The Vermont Supreme Court took the view that neither under the applicable Vermont statute nor under common law did the County Court have power to entertain a petition for support by a person who had been validly divorced in another jurisdiction (118 Vt., pp. 483-486). The Vermont court distinguished the situation before it from cases in which the wife had judgment in her favor awarding support or alimony in separation or limited divorce proceedings before the award of the foreign divorce (p. 481, citing Estin v. Estin, 334 U. S. 541, and Morris v. Morris, 118 Vt. 270).

Thus the Vermont Supreme Court ruled that, in the absence of statute, plaintiff might not have an award of support in her favor because the Vermont County Court was not vested with jurisdiction — i.e., was not competent — to make such an award. It may be noted that a situation parallel to that in New York was a reason for recommendation of the enactment of section 1170-b of the Civil Practice Act (1953 Report of N. Y. Law Rev. Comm., p. 475).

Prior to the decision of the Vermont Supreme Court, plaintiff instituted an action in our courts seeking (1) alternatively an absolute divorce or separation from defendant; (2) provision for her support and maintenance; (3) custody of the infant issue of the marriage and provision for said infant’s support, and (4) such other relief as she might be entitled to under sections 1170-a and 1170-b of the Civil Practice Act. On November 23, 1954 she procured a sequestration order against defendant. In November, 1955, after defendant had appeared generally in the action, a supplemental complaint was filed by plaintiff setting forth the decision of the Vermont Supreme Court, and on April 25,1956 plaintiff amended her complaint to allege her residence in the State for more than one year so as to comply with section 1170-b of the Civil Practice Act.

The trial court dismissed her complaint in all respects (3 Mise 2d 622). It correctly held that the issues relating to the validity of the Nevada divorce decree had been resolved against her in the plenary Vermont proceeding which she instituted. The remaining questions on this appeal relate to the application of section 1170-b of the Civil Practice Act to the facts of this case. Plaintiff argues that the section is applicable, and that it was error for the lower courts to have failed to accord her the requested relief under it. Defendant contends that the statute is inapplicable, and that it may not constitutionally afford plaintiff the relief she seeks.

We are thus faced in this case with the question left open by us in Vanderbilt v. Vanderbilt (1 N Y 2d 342, affd. 354 U. S. 416). There we held that where a wife, after separation but prior to the grant of an ex parte Nevada divorce, established her domicile in New York, she could avail herself of the provisions of section 1170-b and secure an order of support from the New York courts after the Nevada divorce. We stated (p. 351) that we need not decide there whether she should have the same right to come into New York, even after a foreign-State divorce, to take advantage of section 1170-b

Section 1170-b of the Civil Practice Act was recommended by the Law Revision Commission in 1952, with the statement that: ‘ ‘ The Commission believes that legislation is necessary to protect a New York wife whose right to support from her husband may now be completely cut off by an ex parte foreign divorce decree, in the absence of a previous New York separation decree with provision for maintenance.” (1953 Report of N. Y. Law Rev. Comm., p. 468.)

The Legislature, in enacting section 1170-b in 1953 with the recommendations of the Law Revision Commission before them, intended that section to apply only to “ New York wives ” and not to a spouse who was at no time during the course of her marriage a “ New York wife ”. The purpose of section 1170-b was a protective one; it sought to afford a remedy to wives here whose property rights might be jeopardized by an ex parte divorce by their spouses. It was not intended as a substantive grant of a forum to all wives, wherever located, whose husbands had obtained ex parte divorces not including support provisions for them.

Recognizing the social problems created by the frequent inequality of mobility and financial means as between husband and wife, the Legislature aimed to aid those wives who were unable to pursue their itinerant spouses and obtain support rights in foreign jurisdictions. However, such a policy is not furthered by allowing emigrant wives to journey to this State to avail themselves of this remedy. The interest of this State is the protection of the families located here, not the attraction of out-of-State spouses who seek to take advantage of our courts. This construction of the statute is supported by the opinions of those courts which have commented upon it (Vanderbilt v. Vanderbilt, 1 A D 2d 3, 11, affd. 1 N Y 2d 342, affd. 354 U. S. 416, supra; see, also, 43 Corn. L. Q. 265, 270, 274), and avoids the constitutional questions raised by Justices Harlan and Frankfurter in their dissenting opinions in the Vanderbilt case (354 U. S. 425, 433-434).

"While we are not unmindful of the fact that, so far as this record shows, defendant’s conduct toward his wife left much to be desired, the wife has not placed herself in a situation helpful to her in the State of New York. While this State was her domicile before marriage, Vermont was definitely her domicile since 1944. Her husband is said to have abandoned her in June, 1951. He secured his Nevada divorce in July, 1952. In August, 1953 she filed notice of retaining residence in Vermont with the town clerk of Windham, and not until October, 1953, 1% years after she had been divorced, did she first declare her intention to become a resident of New York State. She then lived with her mother-in-law some 20 months — not pursuant to any agreement with her husband, for the negotiations had been terminated, but because the husband’s mother was exceedingly kind to her and paid all her expenses. In the meantime, she was pursuing her marital rights in the courts of her domicile, the State of Vermont. Under the circumstances presented by this record, it seems abundantly clear that plaintiff has had no contact with New York at any time during the period of their marriage, may in no sense be regarded as a New York wife, and accordingly is not entitled to relief under section 1170-b of the Civil Practice Act.

Under our construction of section 1170-b of the Civil Practice Act, the further issues posed by plaintiff in her brief are of little consequence. While it may be true, as her counsel alleges, that the trial court made certain factual errors, nevertheless the Appellate Division affirmed its exercise of discretion with the facts accurately set forth before them. The contention that section 1170-b mandates a court to grant support in every case is in any event irrelevant here since plaintiff does not come within the ambit of said statute.

The judgment appealed from should be affirmed, without costs.

Desmonto, J.

(dissenting). The question is whether, because plaintiff moved into this State after defendant divorced her in Nevada, the New York courts are without power under section 1170-b of the Civil Practice Act to direct defendant to make payments to her for her support.

Section 1170-b {supra) contains this: “In an action for divorce, separation or annulment * * * where the court refuses to grant such relief by reason of a finding by the court that a divorce * * * declaring the marriage a nullity had previously been granted to the husband in an action in which jurisdiction of the person was not obtained, the court may, nevertheless, render in the same action such judgment as justice may require for the maintenance of the wife.” As we shall show, justice surely requires that this defendant support this plaintiff. The question is whether there is authority in section 1170-b for the provision of such justice by the New York courts. The courts below have held that because of the earlier Nevada divorce the Full Faith and Credit Clause (art. IV, § 1) of the Federal Constitution forbids the application here of section 1170-b.

This chronology will furnish a factual background :

1942 — plaintiff, a resident, and defendant, a former resident of New York State, were married in Connecticut.

1944 — the parties took up marital residence in Vermont.

1948— a child was born to the parties.

1951 — defendant left the family home after announcing his intention to get a divorce and marry another woman and after an agreement between the parties that defendant would continue to pay plaintiff $700 a month for herself and the child and that she and the child would move to the vicinity of Oyster Bay, N. Y., to be near defendant’s mother.

1952 — defendant refused any longer to pay plaintiff for her own support (he has never since supported her) but continued to support the child. In June, 1952 he went to Nevada where he obtained a divorce in a proceeding in which plaintiff was not personally served and did not appear. The Nevada decree dissolved the marriage but made no provision whatever for 'support or custody. In November, 1952 plaintiff sued defendant in Vermont for support and custody and for a declaration of invalidity of the Nevada judgment.

1953 — in August plaintiff moved to defendant’s mother’s home in New York State, remaining there until July, 1955 when she bought a residence in New York State in which she has since lived.

1954 — in March the Vermont County Court held the Nevada divorce legal and awarded to plaintiff custody of the child and support for her and the child. Later in 1954 plaintiff, obtaining jurisdiction by sequestering defendant’s property here, brought in a New York court the present action for a divorce or separation and for support and custody.

1955 — the Vermont Supreme Court affirmed the County Court as to the validity of the Nevada judgment and as to custody and support of the child but held that under Vermont law there was no power in the courts to grant support to a woman already validly divorced from her husband. In other words, the Vermont appellate court held itself powerless to pass on plaintiff’s prayer for alimony.

1957 — after a trial the New York Supreme Court and the Appellate Division dismissed plaintiff’s complaint in this suit.

I agree with so much of the decision below in this case as holds that the Nevada divorce is binding. I can see no reason, however, why defendant cannot under section 1170-b (supra) be compelled to give plaintiff the support to which she has a right and which he has refused her.

The history and purpose of section 1170-b (supra) have been thoroughly explored in the 1953 Law Revision Commission Report recommending its enactment and in Vanderbilt v. Vanderbilt (1 N Y 2d 342, affd. 354 U. S. 416). The Legislature granted to the New York courts a new power to award alimony, when and as justice so requires, to a wife against whom a divorce has been granted without jurisdiction of her person having been obtained. Our decision and that of the United States Supreme Court in the Vanderbilt case made it settled law that the statute is generally constitutional even when the wife has not gotten a judgment or agreement for her support before the dissolution of her marriage. Specifically, Vanderbilt held that the “ Full Faith and Credit ” due to the Nevada judgment as a dissolution of the marital status was no bar to later section 1170-b relief. In Vanderbilt we left open (because it was not presented by the facts) the question of whether section 1170-b was available to a woman who came to live in New York State after a foreign divorce. And we do not now have to decide whether under any and every possible circumstance the remedy can be demanded by a divorced wife who for her own reasons selects New York as a forum. On the particular facts of this case we must answer these questions: first, is it unconstitutional to apply section 1170-b to one who like this plaintiff became domiciled in New York after divorce, and, second, if it be not unconstitutional so to do, is it contrary to our public policy and the meaning and purpose of section 1170-b?

Vanderbilt v. Vanderbilt (354 U. S. 416, 419, supra) held flatly that a Nevada decree just like the one here under consideration could not cut off the wife’s support right and that “ the Nevada decree, to the extent it purported to affect the wife’s right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition ’ ’. The right, therefore, remained. May New York enforce it under the circumstances of this case ?

The Supreme Court’s majority opinion in Vanderbilt v. Vanderbilt (supra) assumed without discussion that Mrs. Vanderbilt was sufficiently a domiciliary of New York State so that New York could constitutionally enforce her right to support. One of the dissenting Justices in the United States Supreme Court complained (354 U. S. 425) that the Vanderbilt decision would mean that a divorced wife ‘1 may sue wherever she can serve the other spouse or attach his property ”, but he conceded (p. 426) that New York has substantial connection with a domiciliary who has been divorced ex parte in Nevada ”. The other dissenting Supreme Court Justice in the Vanderbilt case thought (p. 435) that the Vanderbilt case should have been remanded to the New York courts for a determination (which our courts had in fact already made) as to whether Mrs. Vanderbilt was a New York domiciliary from the time she entered the State.

From all of the above it follows that the only real problem here is whether on the facts of the present case New York had sufficient contacts ” with this marriage so as to permit jurisdiction of this suit. That question is not to be answered “ no ” just because these two people never lived together in this State, since that was the fact as to the Vanderbilts, also. The only reason for a negative answer would be that this plaintiff

moved to New York after her husband’s divorce. The sound and compelling reason for an affirmative answer is that she moved here by agreement with defendant and at his request. She did not shop around and pick the State most advantageous to her and most inconvenient and expensive for her former husband. Perhaps since her husband had abandoned her she could legally have done just that. But on the facts as they are, justice and public policy forbid defendant from now questioning the validity or effect of the change of domicile he himself urged on his wife.

Some point is made that because of the use in section 1170-b (supra) of the word “may” the granting or refusal of relief is discretionary. Possibly that is so, at least as to the amount of support money, but the Appellate Division apparently granted leave to appeal so that we might pass on a question of law and that law question must be as to whether there is in this case any legal bar to relief. I think there is none.

The judgment should be reversed, with costs, and the case remitted to the Appellate Division to pass on the question of discretion.

Judges Dye, Fui®, Van -Voorhis and, Burke concur with Judge Froessel ; Judge Desmond dissents in an opinion in which Chief Judge Conway concurs.

Judgment affirmed.  