Summary
In Harris v. Harris (36 A.D.2d 594), the court held that a judgment of "Separate Maintenance" by the Superior Court of New Jersey based upon findings of abandonment and separation is a "formal document which authenticates the fact and reality of the parties' separation" and is sufficient to sustain a cause of action for divorce pursuant to subdivision (5) of section 170.
Summary of this case from Nitschke v. NitschkeOpinion
February 18, 1971
Order, Supreme Court, New York County, entered July 24, 1970 and judgment of said court entered August 20, 1970, dismissing the complaint on the merits reversed, on the law, the motion to dismiss the complaint denied, the judgment vacated and the complaint reinstated, without costs and without disbursements. Plaintiff husband instituted this divorce action against his wife under subdivision (5) of section 170 Dom. Rel. of the Domestic Relations Law on the ground that they lived separate and apart for two years after September 1, 1966, pursuant to a judgment of separation issued to the wife on July 29, 1966 by the Superior Court of New Jersey. Concededly, the parties lived separate and apart prior to and continuously after the New Jersey judgment which, although labeled "Judgment for Separate Maintenance", was made upon findings of abandonment and separation. Special Term ruled that a New Jersey judgment of support is similar to an order of our Family Court and that it does not alter the marital status and granted the wife's motion to dismiss the complaint on that ground. In this the learned court erred. In the recent case of Gleason v. Gleason ( 26 N.Y.2d 28) the Court of Appeals held that a divorce pursuant to the pertinent section will be granted if the parties have actually lived apart for two years after September 1, 1966, pursuant to a separation decree. The decree is simply intended as evidence of the authenticity and reality of the separation. The section does not require that it be a New York State decree. It speaks of "decree or judgment" from which we discern a clear legislative intent that separation decrees or judgments, irrespective of varying nomenclature in other jurisdictions, were intended. The New Jersey judgment is a formal document which authenticates the fact and reality of the parties' separation; it was based upon findings that the husband "without any justifiable cause abandoned" the wife "and separated himself from her". The legal effect of a New Jersey decree of separate maintenance is much the same as that of a limited divorce. ( Lavino v. Lavino, 23 N.J. 635, 639-40; see, also, New Jersey Statutes Annotated, § 2A: 34-24; Friedman v. Friedman, 37 N.J. Super. 52, 55-57; Fallon v. Fallon, 111 N.J. Eq. 512, 514.) The complaint alleges that the parties have lived separate and apart since 1966 when the plaintiff became a resident of New York City and that conciliation proceedings have been terminated. Taking the complaint at its face value, it does state a cause of action. ( Gleason v. Gleason, supra, p. 35.)
Concur — Nunez, J.P., Kupferman, McNally and Steuer, JJ.