Opinion
April 14, 1997
In an action for a divorce and ancillary relief, (1) the plaintiff wife appeals from stated portions of an order of the Supreme Court, Queens County (Polizzi, J.), dated January 19, 1996, which, inter alia, denied those branches of her motion which were (a) to amend her complaint so as to add a cause of action to declare void a foreign judgment of divorce and to add an additional party defendant, (b) to strike the defendant husband's answer and counterclaim, and (c) for an interim award of counsel fees, and (2) the defendant husband cross-appeals from stated portions of the same order.
Ordered that the cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the order is modified, on the law, by vacating the provisions thereof which denied those branches of the plaintiff's motion which were to amend her complaint so as to add a cause of action to vacate a foreign judgment of divorce and for leave to add an additional party defendant, and substituting therefor a provision granting those branches of the plaintiff's motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.
The general rule is that "[a] foreign divorce decree obtained on the ex parte petition of a spouse present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process" (48A N Y Jur 2d, Domestic Relations § 2673, citing Rosenbaum v. Rosenbaum, 309 N.Y. 371; Alfaro v. Alfaro, 5 A.D.2d 770, affd 7 N.Y.2d 949; Imbrioscia v. Quayle, 278 App. Div. 144, affd 303 N.Y. 841; Tal v. Tal, 158 Misc.2d 703; see also, Greshler v. Greshler, 51 N.Y.2d 368, 376; Aranoff v. Aranoff, 226 A.D.2d 657; De Pena v. De Pena, 31 A.D.2d 415; Gorie v. Gorie, 26 A.D.2d 368; Rosenstiel v. Rosenstiel, 21 A.D.2d 635, 637, affd 16 N.Y.2d 64, cert denied 384 U.S. 971; Rappel v. Rappel, 39 Misc.2d 222, affd 20 A.D.2d 850).
In the present case there are unresolved issues of fact which warrant the granting of that branch of the plaintiff's motion which was to amend her complaint so as to add a cause of action to vacate the defendant's Dominican Republic divorce. Similarly, the branch of the plaintiff's motion which was for leave to add the defendant's current wife as a party should have been granted. The invalidity of the defendant's Dominican Republic divorce would render the second marriage a nullity ( see, Donohue v Donohue, 57 A.D.2d 543; Walsh v. Andorn, 41 A.D.2d 720, revd on other grounds 33 N.Y.2d 503).
We have examined the appellant's remaining contentions and find them to be without merit. Mangano, P.J., Bracken, Rosenblatt and Miller, JJ., concur.