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Rich v. Rich

68 N.Y. St. Rep. 823 Court N.Y. Gen. Term Decision date 1895-07-06 English

Delivered by Putnam, J.

Contents

Majority

p. 823
Alice E. Rich, Plaintiff, v. Adelbert E. Rich, Defendant.
(Supreme Court, General Term, Third Department,
Filed July 6, 1895.)

Headnote

I. Divorce — Foreign judgment.
A judgment of divorce of the court of a state, where the plantifE resides, is binding on the defendant, though she resides in another state, if she appears in the action.
•3 Same — Res adjudicata.
The failure of a decree to provide for the maintenance of a child, where it allows alimony and costs to the wife and gives her the custody of the child till it is a certain age, without making any allowance for its support, amounts to a denial of a right to such maintenance.
Controversy submitted, without action, upon an agreed statement of facts.
C. L. Allen, for pl’ff; King & King (Edwin A. King, of counsel), for def’t.

— The legal questions submitted in this case are so well settled that we deem it unnecessary to write an opinion. The defendant, being an actual and bona fide resident of the state of Hebraska, in April, 1886, commenced an action against the defendant, his wife, for an absolute divorce in the district court of Cass county, in said state a court of general and competent juris

p. 824
diction. The plaintiff then resided in Washington county, in this state. She voluntarily appeared by attorney in said action,, served an answer therein, and was sworn as a witness. The case was tried, and judgment for an absolute divorce was granted in favor of the defendant and against plaintiff, on the ground of desertion, in compliance with the laws of the state of Nebraska. No appeal has been taken from this” judgement, and it remains in force. It provided, among other things, that the marriage contract theretofore existing between the parties be, and the’same was dissolved, and that both parties were relieved from.the obligations thereof. Plaintiff having voluntarily appeared in said action, the judgment is to be considered in all regards the same as if plaintiff, at the time it was granted, was a resident of Nebraska. Hence, by the judgment of a court of general and competent jurisdiction, and having jurisdiction of the parties and subject matter, an absolute divorce has been granted, in pursuance of the laws of Nebraska, to the defendant. That judgment is as binding upon the plaintiff in this state as in Nebraska. Full faith and credit must be given in each stale to the judicial proceedings of every other state. Such proceedings have the same effect in every court within the United States as they have by law or usage in the courts of the state in which they are taken. Const. U. S., art. 4, § 1; Act Cong., May 26, 1790, chap. 11; Rev. St. U. S., p. 171, § 905. See, also, Hunt v. Hunt, 72 N. Y. 217 ; Jones v. Jones, 108 N. Y. 415 ; 13 St. Rep. 838 ; De Meli v. De Meli 120 N. Y. 485 -495 ; 31 St. Rep. 704 ; Kennier v. Kennier, 45 N. Y. 535 -539. It follows, in answer to the first question submitted, that the plaintiff, Alice E. Rich, is not the lawful wife of the defendant, Adelbert E. Rich.

In answer to the second question propounded, we are of the opinion that the plaintiff cannot recover of the defendant any sum for the past education, .support, and maintenance of the infant child of the parties. ' In the judgment granted in the district court of Cass county, Nebraska, an allowance was made of $100 to the plaintiff for alimony, and she was also awarded costs. She was given the custody of the infant child of the parties until he attained the age of eight years. No allowance was made for his support and maintenance. The court could have made a provision for the maintenance of the child, but failed to do so. On the question under consideration, this case should be regarded the same as it would have been had the judgment of divorce been granted by the courts of this state. The law presumes that every question involved in the action in which the judgment was rendered — and the right of the plaintiff to an allowance for the maintenance of the child was one of those questions— was passed upon by the court and that the claim for such maintenance was decided adversely to the plaintiff. We think the judgment in the Nebraska court is a bar to plaintiff’s claim. The principle declared in Kamp v. Kamp, 59 N. Y. 212 , prevents an allowance to plaintiff for the support and maintenance of the child of the parties.

Let a judgment be entered in pursuance of this memorandum and the stipulation of the parties, without costs. All concur.

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