Opinion
December 19, 1966
In an action for separation, defendant husband appeals from a judgment of the Supreme Court, Nassau County, entered February 4, 1966, after a nonjury trial, which inter alia granted plaintiff a separation and dismissed defendant's counterclaim for annulment on the ground of invalidity of a Florida divorce decree which plaintiff had procured against a prior husband. Judgment reversed, on the law, without costs, and new trial granted, with costs (if any) to abide the event. No questions of fact have been considered. The trial court erred in rejecting defendant's offer of proof to show that a Florida divorce decree obtained by plaintiff against a prior husband, without personal service of process upon him and without appearance by him, was invalid. A collateral attack of this nature is permissible ( Williams v. North Carolina, 325 U.S. 226; Cook v. Cook, 342 U.S. 126; Rudyk v. Rudyk, 278 App. Div. 837; Gruttemeyer v. Gruttemeyer, 285 App. Div. 1185; Aspromonte v. Aspromonte, 4 A.D.2d 689; Apelbaum v. Apelbaum, 7 A.D.2d 911). The Rosenstiel and Wood decisions ( 16 N.Y.2d 64) are not pertinent. Each of the foreign divorce decrees considered therein was granted upon the physical appearance of one spouse and the voluntary appearance of the other spouse, through an authorized attorney.
I am concurring only because I deem myself bound by the prior decisions of this court in Gruttemeyer v. Gruttemeyer ( 285 App. Div. 118 5) and Newburger v. Newburger ( 17 A.D.2d 968). However, I think those decisions (as well as the First Department's decision in Jackson v. Jackson, 274 App. Div. 43) based their holdings on prior Court of Appeals decisions which were not directly in point (see, e.g., Fischer v. Fischer, 254 N.Y. 463; Lefferts v. Lefferts, 263 N.Y. 131; Davis v. Davis, 279 N.Y. 657; Landsman v. Landsman, 302 N.Y. 45). Further, if I did not consider myself bound by Gruttemeyer and Newburger, I would be inclined to hold that the present defendant is equitably estopped to attack the ex parte Florida divorce obtained by plaintiff from her prior husband with funds supplied by this defendant.