(Download) "Lewis J. Harris v. Esther A. Harris" by Supreme Court of New York * Book PDF Kindle ePub Free

July 08, 2021

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Title: Lewis J. Harris v. Esther A. Harris
Author : Supreme Court of New York
Release Date : January 18, 1971
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 59 KB

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Plaintiff husband instituted this divorce action against his wife under subdivision (5) of section 170 of the Domestic Relations
Law on the ground that they lived separate and apart for two years after September 1, 1966, pursuant to a judgment of separation
issued to the wife on July 29, 1966 by the Superior Court of New Jersey. Concededly, the parties lived separate and apart
prior to and continuously after the New Jersey judgment which, although labeled "Judgment for Separate Maintenance", was made
upon findings of abandonment and separation. Special Term ruled that a New Jersey judgment of support is similar to an order
of our Family Court and that it does not alter the marital status and granted the wife's motion to dismiss the complaint on
that ground. In this the learned court erred. In the recent case of Gleason v. Gleason (26 N.Y.2d 28) the Court of Appeals
held that a divorce pursuant to the pertinent section will be granted if the parties have actually lived apart for two years
after September 1, 1966, pursuant to a separation decree. The decree is simply intended as evidence of the authenticity and
reality of the separation. The section does not require that it be a New York State decree. It speaks of "decree or judgment"
from which we discern a clear legislative intent that separation decrees or judgments, irrespective of varying nomenclature
in other jurisdictions, were intended. The New Jersey judgment is a formal document which authenticates the fact and reality
of the parties' separation; it was based upon findings that the husband "without any justifiable cause abandoned" the wife
"and separated himself from her". The legal effect of a New Jersey decree of separate maintenance is much the same as that
of a limited divorce. (Lavino v. Lavino, 23 N. J. 635, 639-40; see, also, New Jersey Statutes Annotated, 2A: 34-24; Friedman
v. Friedman, 37 N. J. Super. 52, 55-57; Fallon v. Fallon, 111 N. J. Eq. 512, 514.) The complaint alleges that the parties
have lived separate and apart since 1966 when the plaintiff became a resident of New York City and that conciliation proceedings
have been terminated. Taking the complaint at its face value, it does state a cause of action. (Gleason v. Gleason, supra,
p. 35.)