This is an action for separation brought by a wife in which she seeks support. The husband seeks to avoid liability to plaintiff by alleging the invalidity of a Nevada divorce which he obtained from his first wife. May he avail himself of such a defense?
The answer interposes two separate and distinct defenses. It is only the second defense with which we are concerned.
The facts presented by the defense are as follows: Defendant and his first wife, domiciled in this State, were married here in 1905. There are two children by that marriage. In 1932 the present defendant, while retaining his residence in this State, made a visit to Reno, Nev., where he invoked *Page 357 the jurisdiction of the courts of that State and obtained a decree of divorce from his first wife, who neither entered an appearance nor was personally served in that action, and who at all times has remained a resident of this State. (Cf. Glaser v.Glaser, 276 N.Y. 296.) Consequently this divorce against the first wife is not recognized by the courts of this State. (Winston v. Winston, 165 N.Y. 553; Hubbard v. Hubbard,228 N.Y. 81; Lefferts v. Lefferts, 263 N.Y. 131.) The subsequent marriage between plaintiff and defendant, therefore, was void for the incapacity of defendant to marry. But none the less plaintiff and defendant participated in a complete marriage ceremony and did live together as man and wife for six years pursuant thereto, after which time defendant abandoned plaintiff, who now brings this action. Defendant entered the defense already noted, viz., that he lacked capacity to marry plaintiff because the court, which upon his petition purported to accord him a divorce from his first wife, lacked jurisdiction to act in the premises. Upon motion of plaintiff Special Term struck out the defense as insufficient in law and cited Starbuck v. Starbuck (173 N.Y. 503) in support of its decision. The Appellate Division affirmed by a divided court, the majority citing Brown v.Brown (242 App. Div. 33; affd., 266 N.Y. 532), and the minority citing Stevens v. Stevens (273 N.Y. 157). Defendant appeals upon the following question, certified by the Appellate Division to this court: "Is the second, separate and distinct defense in the amended answer, sufficient in law on the face thereof?"
The question upon this appeal, therefore, depends upon whether defendant husband may now be heard to assert in this action, brought by his second "wife," that the judgment of divorce which he sought and obtained failed of its purpose and thereby did not give to the defendant that freedom to remarry which he appeared to possess by virtue of said judgment.
In general, a person who invokes the jurisdiction of a court will not be heard to repudiate the judgment which that court entered upon his seeking and in his favor. *Page 358 (1 Freeman on the Law of Judgments [5th ed.], § 320; cases collated in 3 A.L.R. 535.) The rule has been applied in this State in cases where property rights arising out of the marriage have been involved. (Starbuck v. Starbuck, supra; Bell v.Little, 204 App. Div. 235; affd., 237 N.Y. 519; Hynes v.Title Guarantee Trust Co., 273 N.Y. 612.) It is said, however, that in Stevens v. Stevens (supra) we have answered the question upon which the case at bar turns. But in the Stevens case an action for separation was brought in this State by a wife against her husband who had previously secured a divorce in a Nevada court which was admittedly without jurisdiction. The husband counterclaimed for a divorce. At the trial the wife sought to defeat the counterclaim by introducing in evidence the Nevada divorce obtained by the husband in order to put him in a position where he could not maintain his claim for divorce because he was no longer the husband of the wife. Upon the facts of that case this court held that the husband was not prevented from maintaining the action for divorce despite the prior Nevada decree which he had obtained. "Our conclusion is that the award of the Nevada decree to the husband should have no effect upon the right of either party to a full adjudication in this action upon the conceded fact of their existing marital status." (273 N.Y. at p. 158.) The court clearly indicated the effect of the decision when it stated that "We need not inquire what the result would be in some further event that has not happened." (273 N.Y. at p. 159.) Thus, the very language of the opinion of this court in the Stevens case indicated that it would not control a different situation. In the Stevens case the position which the husband assumed in the proceedings in this State was inconsistent with the decree which he had obtained in Nevada only in the sense that as part of a cause of action for divorce it is necessary to prove the marriage. (Fischer v.Fischer, 254 N.Y. 463; Jones v. Jones, 108 N.Y. 415.) But the action which he sought to take was parallel with that which he had previously undertaken in the Nevada proceedings in that the *Page 359 object of both was the same, to wit, termination of the marriage with his wife. Such is not the situation in the case at bar where the action which defendant seeks to take is inconsistent with the result purportedly achieved by the invalid Nevada decree.
In Vose v. Vose (280 N.Y. 779) the plaintiff in a prior action was allowed to repudiate the judgment of divorce which he had obtained. In that case neither of the parties ever left this State and the judgment which was repudiated was that of a divorce by a Mexican court which had not even the slightest semblance of jurisdiction to act in the premises. The husband and the wife in that case had merely entered into a collusive agreement to obtain from a court of a foreign country in which correspondence through the mails constituted the only nexus between either of the interested parties and the court which entered the judgment of divorce. In this case it may be observed also that section 51 of the Domestic Relations Law (Cons. Laws, ch. 14) interdicts any agreement between a husband and wife "to alter or dissolve a marriage or to relieve the husband from his liability to support his wife." It is urged, on the other hand, that in Brown v.Brown (supra) we took a position which does not permit a defendant under the circumstances of the case at bar to repudiate his obligation to support the wife. The Brown case may also be said to have involved rights arising out of a contract whose validity depended upon the existence of the marriage relationship so that the exact ground upon which to place that decision may be said to be in dispute.
We come, then, to a consideration of the principle applicable in the case at bar. We cannot lose sight of the fact that the present defendant was himself the party who had obtained the decree of divorce which he now asserts to be invalid and repudiates in order that he may now disown any legal obligation to support the plaintiff, whom he purported to marry. To refuse to permit this defendant to escape his obligation to support plaintiff does not mean that the courts of this State recognize as valid a judgment *Page 360 of divorce which necessarily is assumed to be invalid in the case at bar, but only that it is not open to defendant in these proceedings to avoid the responsibility which he voluntarily incurred.
It is conceded that the estoppel which is invoked against the present defendant is not a true estoppel as that term is ordinarily understood, although the effect is the same in the case at bar.
But it is urged that even though the prior authorities in this State do not compel a contrary result, a different conclusion should be reached as a matter of principle. It is said that public policy requires that the interest of the State in the first marriage be protected even though that may also give to the individual defendant an incidental advantage to which he is not entitled in his private right. Thus defendant seeks to avoid the obligation which he has purported to undertake to support his second wife, upon the pretext that such is inconsistent with his obligations toward his first wife. Objection upon this score is fully met by the fact that the needs of the first wife are to be taken into account in arriving at the ability of defendant to support plaintiff in the case at bar. Defendant would altogether disavow any obligation toward this plaintiff because of his obligation to his first wife. The result which we reach here is the only one which awards justice to this plaintiff, prevents her from becoming a public charge if she should be impecunious and at the same time protects the first wife in adequate degree. Thus there is complete observance of not only the interest of the State in the protection of the first marriage, but also of the other interest of the State that marriage obligations shall not be lightly undertaken and lightly discarded.
Nothing in this decision should be taken to mean that because the defendant may not in these proceedings avail himself of the invalidity of his Nevada decree he is not the husband of his first wife. On the contrary, the very theory that defendant is precluded in these proceedings presupposes that the true situation is the contrary of that which he may show in the case at bar. *Page 361
It follows, therefore, that the order appealed from should be affirmed, with costs, and the question certified answered in the negative.