The parties were married on June 4, 1938. There are two sons, issue of the marriage, one twelve and a half years of age and the other seven and a half. Difficulties arose between husband and wife and in June, 1946, the wife commenced an action for separation against the husband. During its pendency the parties entered into a separation agreement which, insofar as material, provided for plaintiff’s custody of the two sons, subject to defendant’s partial custody during stated periods, and required the husband to pay $6,000 annually for the suppori of the wife and the two boys, $2,000 for the wife and the balance for the children. A judgment of separation was entered in this State on March 31, 1947, in favor of the wife, which provided for the support of the plaintiff wife and for the support and custody of the children in conformity with the provisions of the separation agreement.
In June, 1951, plaintiff departed for Beno, Nevada, and while there instituted an action for absolute divorce. Defendant was not personally served with process, and did not appear therein by attorney or otherwise. On September 4, 1951, a decree was entered in her favor in the Nevada court which in addition to *352severing the bonds of matrimony, awarded plaintiff the sole and exclusive custody of the two children, and also made provision for the support of herself and the two children along the lines set forth in the separation agreement previously executed in New York and which had been incorporated in the separation decree.
When plaintiff left to go to Nevada, she placed the children at her home in Roslyn, Long Island, in charge of persons who appeared to be well able to take proper care of them. Upon her return to New York on September 7th, plaintiff found that the boys, who had been staying with the father under the partial custody provision of the separation decree, were being kept by defendant beyond the period that he was permitted to have them. According to the terms of the separation decree, he should have surrendered them to the custody of his wife on September 3d. When plaintiff demanded their return, defendant refused to comply.
On plaintiff’s motion, the court adjudged defendant in contempt of the custodial provisions of the judgment of separation, in that he did not return the children to the wife on September 3, 1951. For this failure, he was fined the sum of $500 and directed to immediately surrender the children to his wife. Defendant’s cross motion to modify the judgment of separation by striking therefrom the provisions for the wife’s support and the custodial and support provisions for the children on the ground that the separation judgment was nullified by the Nevada decree was in all respects denied. From those two orders this appeal is taken.
We do not find a proper basis for the order which adjudged defendant guilty of contempt in retaining the children in his custody on September 3, 1951. At that time plaintiff was in Nevada and was not at her home in Roslyn, Long Island. Defendant could not then have returned the children to the custody of plaintiff even had he desired to do so. Plaintiff obtained her decree of divorce in Nevada on the next day, September 4th, and she did not return to New York until September 7th. In the circumstances we think that defendant should not have been adjudged guilty of contempt for failure to return the children on September 3d.
We now consider the order of the Special Term which denied defendant’s cross motion to modify the judgment of separation by striking therefrom (1) the direction that defendant pay the specified sums for the support of the plaintiff and (2) provisions relating to the custody and maintenance of the two *353children. This brings us directly to the question as to what effect is to be given to the judgment of absolute divorce obtained by the wife in the State of Nevada.
The husband has not chosen to challenge the validity of the Nevada decree. The Nevada decree rendered in favor of the wife, upon her application, validly put an end to the marital status. Since plaintiff procured the divorce in Nevada, she is bound by the decree. She may not question its validity or the jurisdiction of the Nevada court to render it (Lynn v. Lynn, 302 N. Y. 193, certiorari denied 342 U. S. 849; Starbuck v. Starbuck, 173 N. Y. 503; Krause v. Krause, 282 N. Y. 355).
However, the adjudication of the Nevada court was one based on jurisdiction in rem and not in personam. So far as the marriage is concerned it no longer exists. Plaintiff, accordingly, is estopped to deny the termination of the marital status, and having sought and obtained a complete severance of the marriage, she is estopped to claim the alimony provisions in her favor under the New York separation decree.
The judgment of separation obtained by the wife in New York was based on the existence of the marriage. The decree recognized the obligation of the husband to support the wife, the extent of which was fixed by the provision for the payment of alimony. Payment of alimony in action for a separation proceeds upon a different theory than provisions for alimony in cases for absolute divorce. Alimony in the latter case is a substitute for the rights of the innocent wife which the absolute divorce cuts off and forbids in the future (Wilson v. Hinman, 182 N. Y. 408, 411; Livingston v. Livingston, 173 N. Y. 377, 381; Matter of Ensign, 103 N. Y. 284; Gibson v. Gibson, 81 Misc. 508, 513).
In the Matter of Ensign (supra, p. 289), the court said: “ When the court dissolves the marriage contract at the suit of the innocent wife, it is authorized to decree the payment to her of a suitable allowance. And why is that? If any marital right continues after the divorce, the wife remains entitled to her support and may enforce it in the ordinary way. On the contrary the statute recognizes that when the marriage tie is broken, and the relation ended, no future rights will remain to the wife, and no future obligations bind the husband which have their root in the marriage relation. The court is authorized to give by its decree, in the form of an allowance, a just and adequate substitute for the right of the innocent wife which the divorce cuts off and forbids in the future. The tribunal granting the decree investigates the husband’s financial con*354dition, takes proof of the value of his property, and then makes a suitable allowance for her life, and so puts the decree and its power in the place and room of what is lost in the future.”
The decree of absolute divorce obtained by plaintiff in the State of Nevada, having validly severed the marital relationship, estopped plaintiff, who was the procuring cause of the absolute divorce, from claiming alimony under the New York separatidn decree. Under the New York decree* the payments were based on the continuance of the marital relationship; A claim by her for a continuance of support' under the New York decree would tend to destroy the effect of the Nevada decree which she herself procured by an election to terminate the marriage. Plaintiff, having chosen to obtain a complete severance of the marriage, could not insist that she still had the right to enjoy the benefits flowing from that relationship under the New York State decree.
In circumstances similar to these it has been repeatedly held in this State that a wife is estopped from claiming the benefit of the support provisions awarded in her favor in the pribr New York separation decree (Dube v. Dube, 230 App. Div. 494 [1st Dept., 1930]; Harris v. Harris, 197 App. Div. 646 [1st Dept.]; Gibson v. Gibson, 81 Misc. 508, supra; Dollard v. Dollard, 51 N. Y. S. 2d 196; Glennan v. Glennan, 197 Misc. 899; see, also, Estin v. Estin, 296 N. Y. 308, 313, and 2 Freeman on Judgments [5th ed.], § 911, pp; 1915-1916).
It would appear that defendant in seeking to be relieved of making future payments of alimony for the wife’s support is adopting the correct remedy by moving for a modification of the New York decree. In Dube v. Dube (supra, p. 495) this court, in circumstances analogous to those here presented, said: “ If the facts alleged by him are correct his remedy was to seek a modification. (Harris v. Harris, 197 App. Div. 646; Gibson v. Gibson, 81 Misc. 508.) The plaintiff has thus far been able to avoid payment of all alimony for either his wife or child. He should be compelled to support his child. (Laumeier v. Laumeier, 237 N. Y. 357;) The court at Special Term pointed out the course for plaintiff to follow if he wished to avoid further liability to support his wife under this- deéree; (Gibson v. Gibson, supra.) Having failed to avail himself of that remedy he should be punished for contempt.”
So far as the custody of the children is concerned the Nevada court had no jurisdiction over that question. The children Were not in the State of Nevada1 during the wife’s domicile-there, nor was the husband; As to the children and the husband, *355the provisions for the custody and support of the children in the New York separation decree are still outstanding and survive. The Nevada court in the circumstances had no power to adjudicate the question of the custody of the children. In awarding the custody of the children to the wife, it attempted to exercise an in personam jurisdiction over persons not before the court. This, it could not do. (Estin v. Estin, 334 U. S. 541, 547.)
Accordingly, we rule that the order appealed from should be modified to the extent of eliminating from the judgment of separation all provision for alimony for the support of plaintiff. Insofar as the support and custody provisions for the children are concerned, we hold that they are still outstanding and prevail. If any change of circumstances should occur which would warrant interference by the New York Supreme Court with these provisions, an application for appropriate modification must be made. The wife is entitled to the custody of the children in accordance with the provisions of the agreement, as she is entitled to the payment for their support as therein provided.
For the foregoing reasons, the order granting plaintiff’s motion to punish defendant for contempt should be reversed and the motion in all respects denied. The order denying defendant’s cross motion to modify the judgment of separation should be modified by eliminating all provisions for the support of the wife, and otherwise affirmed. Settle order.