Opinion
November 24, 1958
In an action by a wife for a separation, the husband appeals from a judgment which, inter alia, granted the wife a separation on the ground of cruel and inhuman treatment and directed the husband to pay $60 a week for her support. The appellant had interposed a separate defense, alleging that he was incapable of marrying respondent in that at the time of his marriage to her he was lawfully married to another woman, that a Mexican decree of divorce obtained by him from that other woman prior to his marriage to respondent was invalid and void, and that he was compelled by respondent to obtain such decree. Judgment reversed, without costs, and action remitted to the Special Term for the limited purposes (1) of making findings of fact, upon the basis of all the proof heretofore adduced, with respect to (a) appellant's cruel and inhuman treatment of respondent and (b) the validity of the Mexican decree of divorce and the estoppel of appellant to deny its efficacy, including, but not limited to, the following: (I) Did appellant appear in person in the Mexican court? (II) Did appellant testify in person in the Mexican court? (III) Did appellant go to Mexico solely for the purpose of obtaining a divorce? (IV) Did appellant intend to relinquish his residence in New York and to maintain his residence in Mexico? (V) Prior to the date of the Mexican decree, did respondent know or was she advised that appellant did not intend to relinquish his residence in New York? (VI) Prior to the marriage of the parties did respondent know or was she advised that the Mexican decree would be invalid?, and (2) of directing the entry of judgment thereon. (Cf. Alfaro, v. Alfaro, 2 A.D.2d 693. ) Nolan, P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur. [ 10 Misc.2d 695.]