Klarish v. Klarish

Stevens, J.

(dissenting). I dissent and vote to affirm. The parties agree that there is no decisional or statute law on collateral attack by a stranger in the granting jurisdiction. The single question then is whether the second affirmative defense and counterclaim should be permitted to stand pending trial, or whether at this junction, prior to trial, this court should grant a motion to strike. The resolution of the question necessarily involves three alternatives. One, to apply the law of the forum and, since New York does permit collateral attack subject to a qualification that the granting State does not bar such attack, allow the defense to stand and permit testimony at the trial in support thereof. Two, the court at this stage of the proceedings may hold, as does the majority, that full faith and credit must be accorded the decree. Three, that there is a presumption of nonattack, where the granting State is silent, and the burden rests affirmatively upon the pleader upon a motion addressed to such pleading, to establish that attack would be permitted.

In the Phillips case (Phillips v. Phillips, 15 Misc 2d 884) the court would not permit collateral attack, and held the Georgia decree entitled to full faith and credit. That, however, was after a trial on the merits. The finding that Georgia would not permit a collateral attack was a well-reasoned conclusion.

In this case at the time plaintiff obtained her decree of divorce the law of the Virgin Islands required (and presently requires) that the party bringing the suit be a “ bona fide resident and inhabitant ’ ’ for six weeks prior to commencing the action. “Inhabitant” has been there held to mean “domiciliary” (Burch v. Burch, 195 F. 2d 799; cf. Alton v. Alton, 207 F. 2d 667). Domicile is a jurisdictional fact (Matter of Johnson, 301 N. Y. 13). But it is held that the full faith and credit clause would *174bar a party personally served and who had entered an appearance (Boxer v. Boxer, 7 N Y 2d 781) and a third party is similarly barred if such party would be barred from making a collateral attack in the granting State (Johnson v. Muelberger, 340 U. S. 581).

My point of departure from the majority view is simply that in the absence of an authoritative declaration by the granting State, or such judicial declarations or statutory indications as to impel the conclusion that collateral attack would not be permitted, a defendant should not be foreclosed, on motion, from the opportunity of sustaining a possibly valid defense. All of these elements are missing here. There is no proof of the existence of all conditions necessarily precedent to the exercise of power, i.e., jurisdiction. To endow the decree with a cloak of invulnerability at this stage of the proceedings, is to make a conclusive adjudication of its validity. This, seemingly would go further than the granting State in light of its statutory requirements. Since New York does permit collateral attack by a stranger where the granting State does not bar such an attack (Rosenbluth v. Rosenbluth, 34 Misc 2d 290; cf. Cook v. Cook, 342 U. S. 126), it should be presumed, at least up to the trial, in the absence of proof to the contrary that the law of the Virgin Islands is the same as that of New York (cf. Gaines v. Jacobsen, 308 N. Y. 218). (Cf. Restatement, Conflicts of Law, § 622.)

McNally and Eager, JJ., concur with Bbegan, J.; Stevens, J., dissents in opinion in which Rabin, J. P., concurs.

Order entered on February 4, 1963, denying plaintiff’s motion to strike out the defense and counterclaim based on the purported invalidity of the Virgin Islands divorce reversed, on the law, with $20 costs and disbursements to the appellant, and the motion granted, with $10 costs.