Plaintiff wife seeks a divorce, alimony, support and counsel fees. The summons with notice seeking such relief was served on defendant husband in Richmond, Virginia, on or about March 30, 1970. The parties were married in Louisiana in 1966. There are no children. At the time of the marriage, the husband was a resident physician in a New York City hospital and the parties lived in New York until January 1,1967 when the husband was inducted into the armed forces. He was in Vietnam until February, 1968. Thereafter he lived in California with his wife until his discharge in early 1969. While in California, the husband signed an employment contract with a group of physicians in Richmond, Virginia, his employment to commence on October 1, 1969 upon completion of his resident training in the New York hospital. The husband has resided in Virginia since October 1, 1969.
Special Term referred the issue of residence to a Special Referee who found that at the time the summons was served the husband was not a resident of New York. However, the Referee further reported that because the husband’s transition to Virginia was not abrupt but gradual, the marital res never left New York and hence the husband was subject to in personam jurisdiction. Special Term confirmed the report, holding that despite the husband’s residency in Virginia, he had maintained sufficient contacts with New York to warrant the court’s granting in personam relief.
Furthermore, CPLR 302 applies only to specifically enumerated classes of actions. Matrimonial actions are not among them, and the defendant having been served in Virginia, the court has not acquired in personam jurisdiction over the defendant. (See Tarshish v. Tarshish, 27 A D 2d 909 [1st Dept., 1967]; Whitaker v. Whitaker, 32 A D 2d 595 [3d Dept., 1969]; De Camillis v. De Camillis, 26 A D 2d 817 [1st Dept., 1966], affd. 19 N Y 2d 880.)
New York courts in an unbroken line of cases have carefully delineated the dual aspect of matrimonial actions. The Special Referee and Special Term have improperly merged the in rem and in personam aspects. The fact that the marital res remained in New York by virtue of the wife’s residence, gives the court jurisdiction to determine the marital status of the parties in accordance with its public policy but does not confer in personam jurisdiction, which depends upon the residence of the defendant or service upon him within the State. (See Domestic Relations Law, § 230; Williams v. North Carolina, 317 U. S. 287.)
The marriage of this childless young couple was of short duration—three years; they lived in New York only during a period of four or five months in 1966 and six months in 1969. We find no moral or equitable ground for deviating from the well-settled law of New York to the effect that the wife may obtain only a determination of her marital status here and that whether
For the foregoing reasons, the order entered March 12, 1971, Supreme Court, New York County (Teleseord, J.) should be reversed on the law and defendant’s motion to dismiss the action, insofar as it demands alimony, support and counsel fees, should be granted without costs or disbursements.