Weiss
v.
Weiss

Appellate Division of the Supreme Court of New York, Third DepartmentMar 2, 1964
20 A.D.2d 824 (N.Y. App. Div. 1964)

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March 2, 1964


Appeal from an order of the Supreme Court which, among other things, granted plaintiff wife's motion that defendant husband be adjudged in contempt for failure to make the payments for the support of his children directed by a judgment of divorce, and denied defendant husband's cross motion to vacate the provision of said judgment directing said payments, on the ground that at the time when defendant was served with the summons and complaint within the State of Georgia his bona fide domicile was there. Defendant concedes that service upon him without the State pursuant to section 235 of the Civil Practice Act conferred upon the court in rem jurisdiction to dissolve the marriage; but this did not, of course, authorize the support payments directed, if defendant was, in fact, a nonresident. ( Odiens v. Odiens, 265 App. Div. 641, 642, and cases there cited; Waters v. Waters, 28 Misc.2d 689.) Plaintiff filed no affidavit in answer to the cross motion and Special Term took no proof and made no finding with respect to defendant's residence. The factual issues presented require a full hearing, with opportunity to both parties to present evidence, to be followed by explicit findings. Order reversed, without costs, and matter remitted to the Special Term for hearing and determination of the factual issues presented by the cross motion at a date to be fixed by the order to be entered hereon. Settle order on notice. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.