Opinion
February 24, 1959
Walsh, Aarons, Salonger Fleishaker ( Matthew L. Salonger of counsel), for plaintiff.
Irwin Klein for defendant.
This is an action for divorce on the alleged ground of adultery brought by the husband.
The complaint is dismissed. Not only has plaintiff failed to adduce any proof that the Nevada divorce decree, dissolving the marriage between the parties, is invalid but the evidence presented supports its validity.
Defendant's second and third counterclaims have been withdrawn and there remains for determination only the first counterclaim. This counterclaim, seeking judgment under section 1170-b of the Civil Practice Act for maintenance and support for a period subsequent to the Nevada divorce, and prior both to the remarriage of the defendant and to the commencement of this action, is dismissed. The Nevada divorce decree was granted on September 28, 1955, and the defendant remarried on June 25, 1957. Defendant took no action seeking support or maintenance until she interposed a counterclaim therefor in this action, which was commenced on February 27, 1958. There is no evidence that she ever questioned the validity of the Nevada divorce; in fact, she now asserts its validity. During all this period, and presumably for sometime prior to her marriage to the plaintiff, she had been, and still is, receiving a weekly allowance for the support of her child by a prior marriage.
While section 1170-b is otherwise applicable to this case, justice does not require that the wife be reimbursed for moneys expended by her for necessaries under these circumstances. Moreover, the court does not construe that section to permit claims in the nature of a common-law action for necessaries for periods antedating the commencement of the action.
Findings of fact, conclusions of law, judgment and order awarding counsel fees have been signed.