Opinion
June 1, 1961
Appeal from an order of Special Term which denied a motion, following a hearing, to vacate and annul a judgment obtained by default which dissolved the marriage of the parties, pursuant to section 7-a Dom. Rel. of the Domestic Relations Law. The respondent husband and the appellant wife were married in 1915 and on September 1, 1920, the wife, allegedly because of illness, went to Sicily accompanied by her two infant daughters and remained there continuously until her return to this country in May, 1958. One of the daughters of the marriage returned to this country in 1931 and lived with her aunt. The other daughter returned with her mother in 1958. The respondent husband by affidavit stated that he had not heard from his wife from September 4, 1920 until about December 1, 1958. At the hearing the appellant testified she corresponded with her husband until 1935 and that his parents lived in the same town in Sicily and were friendly with her. The daughter, Anna, who returned to this country in 1931, testified she saw her father on several occasions terminating in 1948, the daughter living in Corona and her father living in Albany, New York. She testified she had no knowledge of his remarriage until after her mother's return to this country in 1958. The respondent filed a petition for dissolution of marriage in 1932, alleging that his wife had been absent for more than five years; that he had made a diligent search for her without success and he believed her to be dead. The necessary publication took place but the proof in support of the petition and the order of dissolution were not made until March 1, 1943. The proof further established that the respondent remarried in November, 1945, and that a child had been born to the woman who became his second wife prior thereto and on November 12, 1940. Special Term found that the proof established there was fraud on the part of the respondent when he made the petition but which was not before the court at the time of the order of dissolution but further found that laches on the part of the appellant necessitated a denial of the application to vacate the decree. The fraud of a party may render a judgment voidable or void depending upon the nature of the fraud. If the fraud relates to the jurisdiction of the court the judgment is void ab initio. If the fraud merely goes to the merits of the case or to a defense, the judgment is voidable. (See 17 Am. Jur., Divorce and Separation, § 528, p. 623.) The court has found that the fraud related to whether there had been a diligent search to ascertain if the wife were living, which goes to the merits of the case and not to the jurisdiction of the court. No question has been raised as to the court's jurisdiction and therefore the decree is voidable and not subject to collateral attack. ( Arcuri v. Arcuri, 265 N.Y. 358, 361.) If the decree is not void for lack of jurisdiction then laches may be a valid and proper defense. ( Matter of Boylan, 249 App. Div. 35, affd. without opinion 277 N.Y. 539.) The court here found that there was no laches from the time appellant became aware of the judgment of dissolution and the institution of this action but determined that "Viewed in the light of the whole picture here shown, it is the considered judgment of the court that this wife did not employ the diligence to inform herself that the elapsing of time and all the surrounding circumstances demanded." We feel the record sustains such finding especially when coupled with a virtual abandonment of the marriage relationship on the part of the wife for a long period of years. Order affirmed, without costs. Coon, J.P., Gibson, Herlihy and Reynolds, JJ., concur.