# Brief of Respondent in Opposition to Petition for Writ of Certiorari — Astor v. Astor (No. 248) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0537%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Respondent in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text ~TSAMES & BROWNING Clerk ooo j SUPREME COURT OF THE UNITED STATES OCTOBER TERM.- 196 ‘~~ °« No 248. DOLORES FULLMAN ASTOR, Re spondent BRIEF OF RESPONDENT IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI. + a * ie Se : ScorTt XIicCar HY TE é. ( I 414 First I INDEX ° Astor v. Astor. Fla... 107 Se2d 201 .1 1958 | I. Introduction 1-2 Il. Jurisdi¢tion 2-8 ITI. Question Presented $ IV. Statement of the Case 8-13 V. Argument -_ 19-23 VI. Conclusion 23 Authorities. Cited Astor vy. Astor, 7 Fla. Supp. 29, 33 9g Adam v. Saenguer, 303 U.S. 59, 58 S. Ct. 454. 82 L. Ed. * * 649 7 American Railway Exp. Co. v. Levee, 263 U.S. 19. 44S. Ct. 11, 68 L. Ed. 140 * 6-7 Ansin v. Thurston, (Fla.; 101 So.2d 808. 810 . 1958, 3-4 4.13. 14-15, 17, 18-19 Astor y. Astor, 160 N.Y.S.2d 103. 106 PES och Astor v. Astor, 165 N.Y.S.2d 767 1i-12..18 Astor v. Astor, Fla., 89 So.2d 645 9-10) Astor v. Astor, Fla., 120 So.2d 176 (1960) 4-5 Edelman vy. oe 344 U.S. 357: 73 S. Ct. 293, 97 L. Ed. 387 (1952 22 Ellis v. Dizon, 349 U.S. 458, 99 L. Ed. 1231, 75 S. Ct. 850 (See i cs it BC Elrod.v. City of Daytona Beach, 132 Fla. 23, 180 So. 378 (1938 ) : 23 Godchaux Co. vy. ‘Estopenal, 251 US. 179, 40 S. Ct. 116, 64 L. Ed. 213 (1919) ey “ 22 Great. Northern R. Co. v. Stnburet ‘Oil & Ref. Ca:. 2e7 ‘ U.S.-358, 53 S. Ct. 145, 77 L. Ed. 360 (1932, 22 “a INDEX Norfolk & S. Turnpike Co. v. Virani, 995 U.S. 264. 32 S. Ct. 828, 56 L. Ed. 1082 Pacific Mut. Life Ins. Co. of Cal. v. Barton. 50 PF 2d 362. Cert. denied 284 U.S. 647. 52.S. Cr. 29. 76 L. Ed. 550 (C.C.A: 5, 1931) 2 Partmar Vv. Paramount Theater Corp., 347 U.S. 89, 74S. €t:-444,-99-L—Ed.-532 (1904) 15-16 Radio Station WOW, Inc., V- Johnson, 326 US. _ 65 ; S. Ct. 1475, 89 L. Ed. “092 (1945) : 22 Rorick v. Bd. of Com’ rs, 3 F.2d 1048 (1932) 23 Second Nat. Bank vy. First Nat. Bank, 242 U.S. 660, 37 S. Ct. 236. 61 L. Ed. 519 0 Sutton v. Lieb. : 342 U.S. 402. 72 S. Ct. 398. 96 L. Ed 448 (1951) 20-2! Western U. Teleg. Co. v. Crov Oo. 290 U.S. 364, 31 S. Ct. 399. 55 L. Ed. 498 Western Union Sad di 9h Co. v. Priester, 276 U 5S. 22. 48 S. Ct. 234, 72 L. Ed. 555 _m Constitution of the State of Florida, Sec. ie . 9 Florida Statutes, Sec. 65.10 ..... ..-..... 4 ” Rebertson & Kirkham, J UrispEEeeaee of Supreme Cc art of the United States, Sec. 52, 1%51 ° — IN THE SUPREME COURT OF THE UNIT ED STATES “OCTOBER TERM. 1960 : JOHN ASTOR. Petitioner, -~ VS. : ton has certainly been heretofore determined by this Court and also by the courts of Florida in this and other cases. >) Since this issue ‘as been determined in other cases hs this Court. this Court shOuid retuse to grant the Petits: As tocthe “fall faith and credit™ tasis, we asrert there ! ovnd for this Court to take Jurisdictton on it, DEC “ “FI iorida Court, did give “fuil faith and credit” to the Nee York decree but held it did not require the instant t court to set aside the pilor decree pertaining to differen parties. There was no denial of ° ‘full faith and credit” an: aceord:ny!¥, no such ground on which to take neal , IV. QUESTION PRESENTED. Petitioner hus failed to state a question as a questien and we have been unable to determine from Petitioner's brief just precisely what he considers the question to be. We submit that the only question hete 1s: Whether a State Trial Court Should Review and Set Aside a Decree of Another Trial Court of That State Wherein the Same Matters Had Already Been Litigated Between the Same Paities and Were Not Appealed and Became Res Judicata or Subject to Estoppel by Judgment. V. STATEMENT OF THE CASE. Respondent deems it necessary to restate the case in order to correct the inaccuracies and omissions in Pet:- tioner’s statement. In 1954, Aster went to. Mexico and obtained a divorce: from his wife Gertrude, a New York resident tR. 110-121 He then married the Respondent Dolores, a Florida resi- Gq dent. He and Dolores thereafter separated. She com- menced an action im the Cireuit Court of Dade County, Korda «R.App. A '3.R. 141-3). for support under Sectron M0 Florida Statutes. we Icn pravydes: “65.10 Alimony unconnetted with causes of di- veree --If any husband-having ability to maintain or contribute to’the maintenance of his wife or minor children shall fafl to do so. the wife. living with him or living apart from him through his fault. may ob- tain such’ maintenance or contribution upon gom- plaint filed and suit prosecuted as in other chancery causes: and the-court shall make such orders as may be necessary to secure to her such maintenance or con- tribution.” Astor sought by his pleading and proof passively to defeat Doleres’ claim and actively ti annul the marriage or for divorcee, all on the ground that Astor had a living wife at the time of his marriage to Dolores because the ‘Mexican cecree Which he obiained against Gertrude was invalid (R.- App. 196 R. 151-2:. The trial court held (R.App. es R38: “The defendant, asserting that he has not been divorced from a formor, wife Because the decree of a Mexican court sought and obtained by him is void, con- tends that the parties are not husband and wife. The contention, in my Opinion, is not tenable. It is my View that he cannot question the Validity of the Mexican ' decree -because he not only sought and procured it. but took advantage of it by remarrying.” (See 7 Fla. Supp. 29, 33). Dolores appealed as to only the amount of the award. but Astor neither appealed’ nor cross-appealed as is reflected in the decision of the Florida Supreme Court ( Astor vs Astor, Fla.. 89°So.2d 645): . “In this case the appellant wife brings hefore us for review a circuit .court decree awarding her alimony 1° uncommected with enuses of diverce under Section 65 ' ”~ Florida Statutes 1955. F.S.A The onlv question im heed ri trie ipreal . the ati wntafialy } iv. i} by the lower court, WV hich appre Nant seeks tu have creased. * * o * @ “Appellee responded’ to the complaint with an an- ewer denying that he was validly married to appellar or that he was guilty of the misconduct ‘charged in the comet int. Wath his answer appellee included a coun- terclaim asking that his marriage to appellant be an- @ rile’ on the grounds of a prior subsisting marriace and fraud and deceit on the part of appellant, or th.t he he granted an absoluté divorce on the ground of extreme cruelt “!fter hearing the evidence, the chancellor found that the parties were living apart through the fault of iopellee, that appellee was under a duty to support h: is wife, that he wis estopped to denv the validity of the: marriage. and that appellee failed to prove by a pre- -ponderance of the evidence either his residence in the State of Florida or his charge of extreme cruelty.” By ..stor’s failure to appeal or cross-appeal the ruling tht he’was estopped to assert.the invalidity of the Mexican decree and based thereon. the denial of his defense to Dolores’ action and his so-called cross-claim for annulment. sich matters became ‘final. See £59.08. Florida Statutes (R.App. 1G. Thereafter, Gertrude obtained a decree in New York. which correctly declared that the Mexican divorce was invalid as to Gertrude (P.App. 284A’). Dolores was not a party to this action and Gertrude had not been a party to Dolores’ Florida action. Thereafter Astor brought a suit in New York against both Gertrude and Dolores and obtained -personal sery.ce 7? i on both He sought a declaration as to which was his wife The decisions therein of the Supreme Court of New York re reported at 160 NYS 2d 108: 161 NYS2d 443: 16° NYS2d 87 dnd 165 N.Y.S2%d 767. In the second New York decision, the court Stated: “The New York decree in favor of Gertrude and against this plaintiff is binding upon the latter since the New York court concededly had jurisdiction over plaintiff, The Florida decree in favor of Dolores is likewise binding upon this plaintiff as the Florida court admittedly possessed jurisdiction over him. The two decrees are. however, not mecessarily inconsistent. * * * «© * “The Florida decree, in effect. adjudicates that ‘Dolores is the wife of this plaintiff because the fatter is estopped to question the validity of the Mexican divorce decree whereas the New York decree adju- dicates that Gertrude is the wife of this plaintiff by reason of the fact that no valid decree of divorce ter- mirated her marriage to plaintiff. Plaintiff may not, in this*action, procure relief which would deprive either defendant of the provisions for support contained in such defendant's decree against plaintiff. The Florida decree in favor of Dolores does not, however. consti- tute an adjudication binding on Gertrude (who was not a party to the Florida action) that Dolores is t ‘Dlaintiff’s lawful wife for all purposes, especially sin the issue of whether the Mexican divorce decree was valid and left plaintiff free to marry Dblores was not adjudicated.” (160 N.Y.S.2d, p. 106). In the last New York decision the Court stated: “On March 6. 1956, cur courts declared that Ger- -trude is plaintiff's lawful wife and awarded her sep- arate maintenance. Thus Gertrude already has the protection of the courts of New York and presents no busis for the relief herein sought by plaintiff. » - ‘In Florida defendant Doleres has obtained a de- cree for Separate maintenance as the lawful wife of plaintiff herein. See 7 Fla. Supp. 29, affirmed by the Supreme Court of Florida, $9 So.2d 645, 646.. That cose follows Flerida decisions on marital status. Wood vy Wood. 56 Pla. 882-887, 47 Bo. 560. The Florida de- cree is a fihal judgment entitled to recognition in this state. This in noemanner militates against the equally ‘enforcible judgment of our courts in Gertrude’s case against this plaintiff. Thus both Florida and New York have finally passed upon the respective status of defendants vis-a-vis plaintiff. The complaint sets forth no presently necessary justiciable controversy between plaintiff and defendants. The plaintiff's Mexi- cain divorce against defendant Gertrude adds nothing to rights herein and certainly cannot move this court in plaintiff's direction ir exercising a possibly available discretion. See Statter v. Statter, 2 A.D.2d 81, 153 N.Y.S.2d 471, reversed 2 N.Y.2d 668, 163 N.Y.S.2d 19, and the carefully documented opinion of Judge Burke, dismissing complaint therein. . The arguments advanced by plaintiff do not ap- peal to this court's discretion. Florida certainly has authorized defendant Dolores to use the name MS} Astor. That presents no basis for this court to erter- tain plaintiff's action. The fact that the courts of two states “Florida and New York) have entered respective judgments does not warrant anv action in behalf of plaintiff.” (1635 N.Y.S.2d 767-8: R.App. 16). Again Astor failed and again he did not’ appeal. In- stead he returned to Florida and commenced this action acainst Dolores and Gertrude came to Florida and obtained a quick, uncontested ‘diverce from Astor even before. this case Was at issue. In this case Astor sought identically the same relief as to Dolores which he had sought in ‘his so-called cross- claim in the initial Florida action by Dolores,\i. e., an an- sg Astor has petitioned here. 13 ; nulment of the marriage to Dolores, on the ground that the New York court in Gertrude’s action had held that the ‘\Texican decree was invalid as to Gertrude and that Astor was entitled to have full faith and credit accorded it as to Dolores in Florida. Dolores asserted defenses of res judi- cata and estoppel by judgment and that accordingly, full faith and credit to Gertrude’s New York decree did not require Florida to alter Dolores’ earlier Florida decree. The “es rdicata and estoppel by judgment defenses were prem. ised on Dolores’ earller action wherein Astor unsuccess- fully defended her action and, also unsuccessfully alterna- tively claimed for annulment or divorce. al] on the ground that he had a living wife because of the invalidity of his Mexican deeree, Which, adverse rulings Astof had never appealed (R. 27-33)... The trial court here dismissed Astor's Cause at the conclusion of -his evidence (R.App. 1§, R. 102B. 103). Astor appealed to the Florida District Court of Appeal, -Third District, and it unanimously affirmed 'P.App. 1A). Astor then petitioned for certiorari t6 the Florida Supreme Court and the petition was denied 1 P.App. vei. He thereupon petthoned far a réhearing and only then included as additional grounds a “denia! of due pro- cess” and “equal protection” under the Federal Constitu- lion. This petition was granted and on the rehearing the denial of the petition was adhered to and reaffirmed by five justices .with two justices dissenting (Astor v. Astor, Fia., 120 So.2d 176, P.App. 8.\, et seq.). Itis from this denial that VI ARGUMENT. Thé question heretofore stated-was. and is. as the deci- Sion of the’ Florida: District Court of Appeal stated. the “Geterminative question.” The case was decided on the 14 issue of whether Dolores had established a defense of res judicata based on the earlier, unappealed decree in Dolores’ action against Astor in the same court. That this - was the issue is eminently clear in the decision of the Florida Distriet Court of Appeal and, in addition, the c@irt stated the applicable Florida law: ” “The determinative question is whether the later _ New York decree invalidating Astor’s Mexican divorce. _ entered in a suit by Gertrude against Astor to w hich Dolores Was not a party, compelled the: chancellor in the instant. case to vacate the earlier Florida separate maintenance decree. We must answer that questicn in the negative. This is so because the Florida decree. which, in effect. held that Astor was estopped to use the invalidity of his Mexican divorce as a shield against Dolores’ claim for separate maintenance or as a sword to terminate his obligation for her support. and deny- ing Astor's counterclaim for annulment on the same basis, continues binding on him, and is res judicata as to these parties. Prall v. Prall, 58 Fia. 496. 50 So. 867. 870; Grey v. Gray, 91 Fla. 103. 107 So. 261, 262; ying dage v. O'Berry, 101 Fla. 320, 134 So. 520, 522 The estoppel imposed on Astor by the Florida decree was broad enough to cover any and all methods by which Astor might have sought to prove or establish the in- validity of the Mexican divorce, and it is sufficient. as implemented by res judicata. to cover the, effort in: the instant case to establish the invalidity of the Mexi- can divorce by showing the New York decree so held- , ing. entered in a suit in which Dolores was not a party See Gordon v. Gordon, Fla. 1952, 59 So.2d 40. ‘Where the defendant interposes -a- counte! claim and judgment on the merits is rendered agains* him-on the counterclaim. he cannot thereafter mazn- tain an’action on the cause of action stated in the counterclaim, but he is not precluded from main- taining such an action if the judgment is not on tre merits. Restatement, Judgments, £59. “ifs decision 1s sinks 15 ‘Where a judgment is rendered m favor of the plaintiff or where a judgment on the merits is ren- Sind in favor of the defendant. the plaintiff is pre- chided from subsequently maintain: ing a second ac- tion based upon the same transaction. if the evi- aaee needed to sustain the second action would have sisteined the first action.” £61 ibid.” Certainly this case was not decided on a question, with- in the intent of Section 1257, Title 28;U.S.C. The case was decided en a non-federal gyound. The d a pg bv a State gourt that there exists a valid defenke of es judicata or estoppel by judgment based on an earlier decree of the same State court between the same parties a and involving the same issues, does not present a Federal question. ‘Phis is a determination to be made only by the State court and ¢ . The law on res judicata and estoppel by judgment as pronounced by this court is the same as the Florida law “A judgment is an absolute bar to a subsequent _ action on the same claim. But where the second action between the.same parties is upon a different claim or cemand, the judgment in the prior action operates as an estoppel only as to those matters in issue. or paints controverted, upen the determination of which the find- ing or verdict was rendered.” i(U nited States v. Inter- national Bldg. Co.. #45 U.S. 502. 73.S. Ct. 897. 97 L. Ed. 1182, 1953). : In Partmar Corp. v. ‘Paramount Theater Corp., 347 U.S. 89. +5. Ct. 414, 98 L. Ed. 532 (1954). this Court Said: “We have often} held that under the doctrines of res judicata a judgment entered in an action conclusive] lv setties that action as to all matters that w ere or might have been litigated or adjudged therein. But a prior judgment between the parties has been held to operate aS an estoppel! in a suit on a cause of action different a é - «y4 16 from that forming the basis for the original suit ‘on!y as to those matters in issue or points controverted. upon the determination of which the finding or verdict was rendered.’ This latter aspect of res judicata ts the doctrine of collateral estoppel by judgment. establishec as a procedure for carrying out the public policy ot avoiding sn tac litigation.” So that even if this court were to accept jurisdiction. the only purpose to be served would be for this court to re- view whether the Florida court properly applied the same law to the facts of this case. In Ellis v. Dixon, 349 U.S. 458, 99 L. Ed. 1231, 75 S. Ci gn) (1955), this Court was confronted with the question as to whether the State appellate:court had rested its dec: sion on a federal or a nontedera! — and this Cour stated: : : “In these circumstances we must ascertain whethe: that court's decision ‘might’ have rested on a non- federal! ground, for if it - s . 21 obtained by Gertrude is compatible with Dolores’ Florida , decree of separate maintenance, but also. because Sutton v. Lieh, supra. exemplifies a rule ef law just opposite to sPeutioner’s contention that the marrince of Astor and Dolores must Be ceclared void. In Sutton v. Lieb, this court » said: “Full faith : to the New York annulment, which is conclusive everywhere as to the marriage status of Spetiioner ond Henzel. compels Elinois to treat thei: Nevada marriage ceremony as void. ‘The force of that rule. however, does not require that the effect of the New York snnulment en rights incident to this dec- laration of the invalidity ofa the Nevada marriage ceremony shall be the same in all states. * * * Wuith- out reference to the effect of a divorce on incidents of ‘the marriage relation where bot! spouses are’ actually before the court, we think it equally clear, as a matter of constitutional law. that Illinois is free to decide for iwself the effect of New York's declaration of annul- MeN Po ON wt CD NEuluenis respar dent, a Stranger ta that decree.” So this Court held that even thouch New York had heid the second marriage void and therefore Petitioner oncaliy was never remarried. nevertheless, Tins could sterminate @limony payments from the first morriace and Stil give full faith and credit to the New York annulment By wnalogy here the Florida ard New York courts mav give full faith and credit to both Dolores’ Fl lorida decree rd Gertrude’ New York decree and in fact thev have and ve found them compatible : rea’ aad “nder his eee int III. Fetitionér argves that in Sutton’ ! . . ‘ r tise.’ B2,,8*¢ ear ain net kee vy Wal Pot ators : ist ae = ‘ Ge ane} atal VOeCOMmMe E€ESti Pye ‘ %. ‘, 34 F } fo« Ft : oe Fret} « 4 - — . . om C.acming the benefits of the full: faith and credit . aes . 5 ee cr , , . Fr mye ” 2% } « . ; , Tas Cecuise bY entering into a void marriage. This h# absolutels ° ining to do with our present situation. Astor here is on not estopped from claiming the benefits of the ful! faith and credit clause for Gertrude’s New York decree. That de-, cree has been given full faith and credit by the Fiorid: ty muirts, 4) LS Cp be ie full farth and eredit does not recur that Dolores’ Florida decree be setraside. This is the verv. crux of ‘the matter and both the New York and Floritis courts have spoken. as one. on this point. Petitioner's. Points IV arid V (P.Br. 12). if even in- tended to assert rounds for granting the petition, never- theless seek to raise only puters vy nonfederal questions, Petitioner's Points V1 throus th IX argue that he wo: vemed echer equal protection or duc process or both the Florida courts: As stated above, these points were not seasonably «raised below-and therefore cannot be argu here. Petitioner states they were “last fully presente ; to the Florida Supreme Court in the Petiiioner’s petitior for rehearing (Ro 195-2005.° ¢P.Br. 8+.” This ts also the firs’ and the only-place they were raised or even mentioned Neither Petitioner's Complaint in the trial court (R. 1-f nor his Assignments of Error in the Distriet Court of Ap- peal «R. 104-105). nor his Petition for Writ of Certiofay fried in the Fiorida Supreme.Court, contain them. It ha beer dong settled that first presenting the federal questior | nia petition tor’: rehearme in the ‘St ate court is too hate «© Gotehena Col vo Estoptnel, 2501S. 179 48S. Ce Ti 6+ L. Ed. 213 :1919.: Gren: Saniora R. Conv Seakice. Qi’ & Ref. Co. 287 U.S. 358. 53 S. Ct. 145, 77 L. Ed. 360 (1922 Ped Stason WOW, luc. \. Jolson. 326 ‘ 3.120; 65'S: C 475, 8Y L. Ed. 2092 . 1945). A recent case. Ede/mear \ Ci. Fornia. 344 U.S. 3857. 73S. Ct. 208. 85 Lo Ed: SRF (1082 stuted the tollowing: “It is clear that this, Courf is without power * decide whether constitutional rights have beer violated | 9 . tn when the federa! questions are not seasonably rained In accordance with state law It is equally clear that in Florida a federal question not be entertarned.on appeal when not raised by the pleadings in the tria! ‘ourt of assignments of error filed in the cause © See Pacifie Mut. Lite Ins. Co. of Cal. ¥. Barton. MP F2d 862. cert. li -8¢ U.S. 647, 52 S. Ct. 29. 76 L. Ed. atl CoC A. 5: 198) « Rorel:¢. 5d of Com'rs, 57 Fiod 104% 1932 Sordid City of Deytone Beach, 132 Fla 24. 180 So. And here Petitioner sought to raisé these questions firstin his Petition for Rehearing of tné denial by the Florida Supreme Court of Petitioner's Petition for Writ of Certiorari to the District Court of Appeal VII “CONCLUSION, The Petition should be dismissed or denied on anv one of the multiple grounds which we have discussed Respecttuliv submitted, 1S ANS Winiram C. Sreez. 1414 First Nation&Al Bank Bldc.. ye) Miami 32, Florida’ ] HEREBY ( CERTIF Y that a copy ef the foregoing brief Was miaued to the offices of W. F. Parker. Esq.. Ingraham * i. ~ ape) . } ‘ ° . ; ‘ a buudine? Mian $2. Flormda. Attorney tor’ Petitioner. this ' day’ of or . ; 1960 " bas a Ct APPENDIX INDEX TO APPENDIX. Astor v. Astor, 160 NYS 2d 13 Astor v. Astor, 161°N.Y.S.2d 442 Astor v. Astor, 162 N.Y¥.S 2d 87 Astor v. Astor, 165 N.Y S.%q 767 Dolores’ Florida Support Action Complaint . - . Excerpts from Crossclaim ot Astor te Do Support Action Excerpts from Final Decree of trial court in instant CaUsC .. coon tas as BC Ce, Section 5998, Florida Statutes Excerpts from Final Decree dated Apri tered in Dolores’ Florida Support Action A-] A-8 Al (160 New Lagi Supplement 2nd 103.) John ASTOR. Plaintiff. ¥. Dolores Fullman ASTOR and Gertrude Gretsch Astor, Defendants. se sed Court, Special Term, New York County, Part IIT Feb. 14, 1957 - GOLD, Justice. This is ¢ motion by defendant, Dolores Fullman Astor. to dismiss the complaint in a declaratory judgment action commenced by plaintiff against Gertrude Gretsch Astor ind Dolores Fullman Astor. Plaintiff seeks a declaratory asin (1) as to which of the defendassts is his lawful wife, (2) that a’Mexican decree of divorce obtained by him from defendant. Gertrude. be held invalid. and (3) that a Florida decree obtained by Dolores was ineffective to adjudicate that she is his lawful wife. — The notice of moticn is based on the contention that: ‘Florida detree is res jvdicata and entitled ‘to full faitn oi eredit in the courts of this state. - The main brief sub- mitted by the movant. under the praver of the notice of motion for “other and further relief” asserts as an agiditiona] round for dismissal, that the complaint does not state a subsisting justiciable contre, rsv between plaintiff and _the movant. Plaintiff's m. . brief and the reply briefs of beth movant and the plaintiff discuss this questicn at length. In the circumstances, the motion will be treated as based upon both grounds. No useful purpose would be erved by requiring defendant to make a new motion based upon the second ground. | Tt appears from the complaint and the affidavits sub- mitted on this motion that in an action brought by defend: ant. Gertrude Gretsch Astor. against plaintiff in this court. shé obtained a decree of separation, the court holding that Ad a Mexican divorce decree which this plaintiff had thereto- fore obtained was invalid as to Gertrude because she had not been served with process or appeared. It further ap- pears that in an action in Florida, brought by the movant.. Dolores, against this plaintiff. Dolores obtained a decree of separation and support.” The’ Florida court didi not determine whether or not the Mexican divorce was valid, holding that this plaintiff having obtained the divorce de- ree ard having remarried in reliance thereon was estopped ite asserting its invalidity. (1-3) The New York decree in favor of Gertrude and against this plaintiff is binding upon, the latter since the New York court concededly had jurisdiction. over plan tiff. The Florida decree in favor of Dolores is py oibed binding upon this plai intiff as the Florida court idm L. possessed jurisdiction over him. The two ee dare however, not necessarily inconsistent. In Krause v. race, 282 N.Y. 595, 26 N.E.bd 290. the defendant was held es- topped, in an action for a separation. to set up a defense that a foreien decree of divorce. which he himegelf had ob- tuined from his former. wife. was tmvahd.: The court pointed out. 282 N.Y.. st pages 359-360, 26 .N.E.2d. at paz 299 that to refuse to permit the defendant to escape his obligation to suppert the plaintiif did not indicate recogn! tion by our court of the validity of the foreign decree The court added, 282 N.Y.. at page 360, 26 N.E.2d. at pace 2y?. “Nothing in this de¢ision should be taken to mean that because the defendant may not in these proceedings aval! himself of the invalidity of his Nevada decree he is not the husband of his first wife.” The Florida decree, in effect, adjudicates that Dolores ts the wife of this plaintiff be- cause the latter is.estopped to question the validity of the Mexican divorce decree whereas the New York decree-a‘- judicates that Gertrude is the wife of this plaintiff by x A3 reason of the fact that no valid decree of divorce ter- minated her marriage to plaintiff. Plaintiff may not, in this action, procure relief which would deprive either defend- ant of the provisions for support contained in such de- ferdant’s decree against plaintiff. The Florida decree in vor of Dolores does not. however. constitute an-adjudi- cation binding on Gertrude (who was not a party to. the Ficrida action) that Dolores is this piaintiff's lawful wife for all purposes, especially singe the issue of whether the Mexican divorce decree was valid and left plaintiff free to marrv Dolores was not adjudicated. There may be situations presenting a necessity for determining the ques- tion of which of the defendants is the lawful wife of plain- uff. Insufficient facts are. however, set forth in the present * compiaint to show that plaintiff. is faced with an immediate and practical necessity for having that problem determined. Ail that is stated in the pleading is that “The question - Which of the defendants herein enjoys the status of the plaintiff's lawful wife creates doubts as to certain right's and interest in and to the plaintiff's property and estate.” ‘Par. 20). This allegation is a mere conclusion without any ultimate facts to support it. It is entirely too vague and indefinite to justify this court in entertaining and try- ing the present action. What the property and estate consist of and where they are situated are not disclosed, nor are other facts alleged which show that it is necessary , for plaintiff's benefit to determine which defendant is the lawful wife. For aught that is alleged, the plaintiff is seeing a deterfiination as to a purely abstract question. itis well settled that an action for a declaratory judy- ment must be dismissed if it does: not seek determination of an actual problem, the decision of which is presently necessary for practical reasons. .Guibord v. Guibord, 2 A.D.2@ 34,2153 N.Y.S.2d 457; Westerman v. Westerman. 1 LO Oe * AG AD2d 892. 149 N.Y.S2d 330: Prashker v. United State: Guarantee Co.. 1 N.Y.2d 584, 154 N.¥.S.2d 910. In the reply brief submitted bvplaintiff’s attorneys they disavow, as a basis for this action. the need for a declar:- tory judgment to meet the contingency that plaintiff micht predecease both defendants without either -having divorced him—in which event a question might arise as to Dolores’ right to share in plaintiff's estate. The reply brief de- clares (p. 16) “we deny having advanced any such ‘pre-: text’ for the present action.” The reply brief acknow!- edges ‘p. 16) that “declaratory judgment procedure is in- tended to deal: with actual problems and not with re- moie possibilities which may never eventuate”. but — : the position that plaintiff is confronted with four act: problems. The brief then goes Gn to state these pee é “actual Seagal None’of them is alleged in the com- plaint itself. (4; To withstand a motion to dismiss, ‘the pleading must allege facts Warranting the maintenance for an action for a declaratory judgment. Statements in briefs cannot supply or cure the omissions of the compla:nt. se8 from this, however, the four so-called “actual. problems” re- ferred to in he reply bref would not, even if al lleged in the complaint, justify the maimtenance of the present action. The first “actual problem” appears to be plaintiffs alleged need for determining which of the defendants 1: entitled to receive support from him. Plaintiff is not con- fronted with any such necessity, for, as So ob- served, a judgment in this action ‘that Gertrude is plain tif's lawful wife would not deprive Dolores of her richt to support under the Florida decree. Krause v. Krause supra. The facts alleged in the present complaint neca- tive any possibility that Dolores is. the plaintiff's lawl. AS. wife. for plaintiff affirmatively alleges (Par. 8) that Ger- trude was not served with process in his Mexican divorce action and did not appear therein. (5) The second “actusl] problem” asserted to con- front plaintiff is the necessity of deciding which defendant he may be reconc''ed with without risking the commis-. sion of a crime in the state where the other defendant possesses a decree of separation. Plaintiff does not, how- ° ever, state that he wishes to become reconciled to either ct the defendants, or that either of the defendants is will- ing to become reconciled with him. Thexze is also the possibility .that plaintiff mav not wish to become recon- cled with the particular defendant who would be de- ciared his lawful wife if this action were to proceed or. that said defendant would consent to such a reconciliation. The following’ comment in one of the briefs submitted on behalf of the movant is pertinent: “Does the plaintiff really want this court to believe that plaintiff's choice of ‘a wife will depend upon the provisions of a declaratory judgment which this court might give him?" Clearly the second “actual problem” is at best a contingent one which ° _muy -never-eventuate to confrent plaintiff with the need” for its determination. ‘ (6) The third “actual problem” referred to by plain- uff's attorneys arises by reason of the fact that the taxing wuthorities permit the filing of a joint return by a married ‘man oniy with his lawful Wwite. Plaintffs reply briefs state that “if plaintiff remains validly married to Gertrude, re could. if reconciled, file joint returns with her only” ¢p. lv) and that if plaintiff “has become the lawful husban of the movant. upon reconciliation with. her. he could fue joint returns with the movant only.” (p. 18). This problem jis likewise wholly contingent. It presupposes, A6 (1) plaintiff's readiness to become reconciled with at leust one of the defendants, (2) said defendant's readiness to become reconciled with him, (3) said defendant's willing- ness to file a joint return with plaintiff, and (4) plaintiffs willingness‘to file a joint return with said defendant. There ‘is nothing before the court to indicate that the so-called problem is not purely hypothetical and abstract. The fourth “actualsproblem™ yelied upon in plaintiff's reply brief relates to the.right of a taxpayer to deduct pav- ments made pursuant to a court decree of separation, Plaintiff's brief states that he does not know which pav- menfs (those to Gertrude or those to Dolores) will be rec- ognized by government authorities as deductible. It ts. however, possible that the taxing authorities may recos* nize the payments to both Gertrude and Dolores as deduct:- tle rnade as they would be. pursuant to final decrees of separation by the courts of different states. At the present time there appears to be ineutti cier vasis for anticipating a contrary ruling by the tan authori- ties. Moreover, plaintiff may apply to the latter for a ruling as.to whether both sets cf payments will be allowed ns deductions. or, if not. which set of payments wW! ul he allowed. He may then govern himself accordingly. He does not,.at this time. at least. need a declaratory jud.- mient of this court. Whether, if plaintiff is dissatisfied with the ruling he may be in a position to sue for a de- claraicry judgment as to which defendam is his la wful Wile, is a Guestion Whose prese:.t determination is prema- ture. * The motion to dismiss is granted, with leave to serve am amended: complaint within ten days.from the sefvice of a copy of this order with notice of entry. Settle order. A7 - (161 New York Supplemets 2nd 443.) John ASTOR, Plaint: ff, v. Gertrude Gretsch ASTOR and Dolores Eullman Astor, Defendants. Supreme Court, Special Term: New York County, Part 1. Jan. 28, 1957. STEUER. Justice. The plaintiff brings this action ‘against two women, each of whom not only claims to be his wife but each of whom has a. judgment to support her claim. He asks for a declaratory judgment declaring the marital status ‘of the parties. The moving defendant is a‘resident of Florida; She appeared in the action by her attor nev. It is not dis- puted that the appearance was a general one. Thereafter the other defendant served an answer containing a counter- claim against her. This counterclaim seeks a declaratory judgment to the effect that that defendant is the lawful wife. The answer was served on the moving defendant's attorneys. “The motion is to dismiss the counterclaim on the Ground thut witheut personal ser ice the equrt has no jurisdiction of the counterclaim. (1,2) It is a bit difficult to see why the counter- claim is necessary and also what objection there may be to it. Determination of the plaintiff's action wil] dispose Of any issue. raised by the counterclaim. The counter- Claiming defendant under the pleadings has a right to a complete presentation of her marital position. The counterclaim gives her no greater rights either to present vidence or obtain relief that she has without it. Never- theless. the question must be decided. A non- resident who voluntarily appears in an action subjects himself to juris- diction in the plaintiff's suit against him for all purposes. The question is does he also sub ject himself to jurisdiction for the determination of a1 ny claim that a party other than ‘A8 the plaintiff may assert against him. In seeking the answe: to this p problem, it is futsle to Gopsider the provisions of the Civil Practice Act which direct how different parties an action are to proceed against each other and how the court is to make determinations between fhem. Such pr visions control where there is jurisdiction but thev car- not corifer it against a‘non-resident. Authority musi he found. if it exists. elsewhere. ] (3. 4) And iat only is authority lacking for the prop- osition, there is comtrolling gqutheritv against. Matte: of Indiana Transportation*Co.. 244 Cs. 456. 37 S. Ct: 717 61 L. Ed. 1253; Restatement on-dudgments. section 5. The opposition’s reliance on Adam v. Saengaer, 303 U.S. 59. :54 Ct. 454. 82° L. Ed. 649, is misplaced. The decision there held that institution of a counterclaim against the plaintif! by.means of notice on his attorhey is proper even if the plaintiff is a non-resident. As pointed out. 313 LS. at Por 6°. 58 S. Ct. 454. there is nothing arbitrary in a state statute ma .ng a plaintiff who seeks the jurisdiction pres ent for ali purposes ar - The motion is granted ‘ (162 New York Supplement 2nd 87.1 Toahn ASTOR. Plaintiff. v. Gertrude Gretsch ASTOR ~* « ; r 5 F Baumann, 250 N.Y.-382, 165 N.E. 819. and a number cases to the same effect In each of the cases now relied ’ Ag upon by plaintiff. a wife was permitted to maintain an ac- tion for a declaratory judgement as to the effect upon her * marriage of a foreicn diverce decree obtained by her hus- band subsequent to the marrage. In none of saidcases. however. had there been a prior adjudication as to the “validity of the foreign decree-in an action between the plaintiff. and her husband. In the instant case. on the contrary, there has been an adjudication in the courts of this state. in an action between the present plnintiff and Ge: trude Gretsch Astor. one of the defendants. that a Mexi- con divorce obtained by the plaintiff from her is invalid und void and that Gertfude js therefore his lawful wife, notwithstanding his purported remarriage* to defendant. Dolores Fullmsn Astor, That adjudication is binding upon “plaintiff and cannot be undone or sct aside in this action There is. therefore. as far as presently appears. no need at this time for the maintenance and trial of the present action. The existence of a decree of a Florida court hold- ing that plaintiff is estopped from claiming that defendant. Dulcres, is his wife does not. in and of itself. create a neces- sity for the prosecution of the instant suit. This is so be- cause the Florida cowrt did not hold that the Mexican di- Pe War MI aid that plantif bad acenrdi uv heen free to marry Dolores, but merely determined that for the Purposes of the actien for ‘ppert brought by Dolnrre: “he present plaintiff could not be heard to urge as a defense het a divorce decree which he himself had procured was invalid. The Florida decree does not purport to destroy the status of Gertrude as plaintiff's lawful wife nor does pugpert to adjudicate Dolores as the lawful wife of plaintiff except for the purposes of her action for Support . There can be only ore lawful wife at anv given time. AS our Court of ‘Appeals pointed out in Krouse v Krause. 282 * ¥. 345, at pace 360. 26 N.E.2d.290, 999. a getermination . : . : J . ~ ‘hat a defendant who obtained an invaud divorce *mas e Al . not set up the invalidity of the divorce as a defense to an actiun for support by cne whom he purported to marr subsequent.to such diverce, Cos not mean that he is net the husband of his first wife. As plaintiff has failed t extublish the existence of any practical necessity for the- 1aintenance and prosecution of this action in the light of ‘the prior determination that Gertrude is his lawful wife and the absence of a contrary determination by the Flords court. this court adheres to its original determination: that the present complaint should he dismissed. It- is to be noted, in this connection, that tn none of the cases now’ ¢ ited by plaintiff was the action for a declaratory judgment - _ declaring a foreign decree void brought. by the very spouse who had procured the foreign decrec. It should also be mentioned that the complaint. whose sufficiency is at- tacked, does not even allege that Dolores claims to be plaintiff's wafe for any purpose except the right to be sup- ported by him: Paragraph 17 of the pleading merely alieve> that the Florida decree held Dolores entitled, as plaintuls . wife, to a support decree. The motion for reargument is granted, but upon such rearcument the original determination is adhered to. +465 New York Supplement 2nd 767.: John ASTOR. Plaintiff.ev. Gertrude Gretsch ASTOR Delores Fullman Astor, Defendants Supreme Court, Special Term, New York County, Part Ai June 14, 19957. . EPSTEIN. Justice. ; This action is brought ‘by plaintiff. Jonn Astor, for 4 declaratory judgmednt. seeking to have this court: Gete: mine which of the two named defendants is “duis lwtu. wife.” Both plaintuff and defendant Dolores Fullman Ast: a | All’ * are Florida residents. Defendant Gertrude Gretsch ‘Astor. alleged to be a resident of New York. is a defendant, and has interpesed an answer esking for judgement declaring her to be the lawful wife of plaintiff. On the argument, however. Gertrude was not represented and has filed ‘po ‘brief. herein. That is very understandable because Gertsude has a determination of the New York courts in’ her favor. On March 6. 1956, our courts declared that Gertrude is plaintiff's lawful wife and awarded her Stp- arate Maintenance. Thus Gertrude already has the pro- tection of the’courts of New York and presents no basis ‘for the relief herein sought by plaintiff. “New York courts do not. generally speaking. look with favor upon actions brought by a nonresident plaintiff, whose mafrimonia! domicile was not in this State and who seeks to use our courts for declaratory relief with respect ‘9 marital staius, unless there are substantial reasons for invoking the exe: cise of pur judicial power.” Engel v. En- sel. 275 App. Div. 14, at*page 16, 87 N.¥.S.24 1, ut page 4. In Florida defendant Dolores has obtained a decree for separate maintenance as the lawful wife of plaintift terein See 7 Fla: Supp. 29, affirmed by the Supreme Court of Florida, 89 S0.2d 645. 646. That case follow: Florida decisions on ymarita! status. Wood v. Wood, 56 Fla. 882-887, 47 So. 560. The Florida deeree is a fina! judg- ment entitled to recognition in this state. This in no manner militates against the ugually enforcible judgment ef our courts in Gertrude’s case ugainst this plaintiff. Thus both Florida and New York have fin: lly passed upon the respective status of defendants Vis-a-Vis plaintiff. The Complaint sets forth no presently necessary justiciable “Onreversy between plaintiff and defendants. The plain- ‘“afS Mexican divorce against défendant Gertrude adds “thing to plaint:ff's rights herein and certainly cannot . . Al2 move this court in plaintiffs direction in exercising a pos- oe availuble discretion, See Statter v. Statter, 2 A. sf CRO ANT SY oe Bel, reversed’? N.Y.2d 668, 163 N.Y.S : 3, and the carefully documented opinion of Judge Bur) dismissing complaint therein. The arguments advanced by plaintiff do not appeal to this Court’s discretion. Florida certainly has authoried defendant Dolores to use the name Mrs. Astor. That eee sents no basis for this court to entertain plain tiff's on. The fact that the courts of two states (Flor ida and ne York) have entered respectrve judgments does not war rant any action in behalf of plaintiff. Suppose plaintiff should again resort to Mexico's jurisdiction for anotoe judgment -not available for reeounition’ in this state, to set hirn free upon the sea of matrimony’ once more. Should he then again be allowed to come into the courts of New York to ask our courts to tell him which of three-is his wife? But plaintiff's reasons advanced herein are equally uncon- seionable. He would like to be rid of the burden of ce- ciding what deductions he may take on his income tax returns. To that end he can await the action of the Bu reau of Internal Revenue and a review of their realns by the Federal Courts. Nor is this court me ved by the plaintiff's ‘alleged sl in ‘the event that he shoul: -decide to seek*t-recerc:hation with either one or the othe: of the two defendants. He fears Florida (his lega! re-- Geneve) if hggremgrries Ge:trude and he fears New ¥ if he remarries Dolores. Neither of the women has in- dicated anv such lkelihecd and plaintif!’s suggesti nis braven. Nor is the court moved by the possible battic for plaintiff's remains or effects atte: his demise. That talniv is not a presentiv forceful argument for entertain- . ‘ ‘ss . : - rae 1S reP vy " : “+ , . ay : “wer jurtsdichion in benhat Of a non-resident. ’ a Al3 Both as a matter of ! saw and in the exercise of discre- tion, the complaint is dismissed a: setting forth no souhd basis for a declaratory judgmetr See also Bickford v. Bickford. Sup., 50 N.Y.S.2d 15, affirmed 269 App. Div. 657, 5% N.Y.S.2d 461: Leitman v. Leitman, 284 App. Div. 959, v. Guibord, 2 A.D.2d 34, 153 N.Y.S.2d 457 Delores' laint against Astor filed Nov. 22, 1 in Circuit Court, Dade Co., Fla., Chancery Case Mo. 174,368, (R.92-5,- Def. Ex. 1, R.141-2) 2 at Miami Beach, Florida and has of Florida continuously The Plai res} dent ntiff resides been a since December: 1953. -The Defendant also resides in Miami Beach. Florida IT. . The parties. were married August 6, 1954 at Ar! ton ‘" : te vee ‘) atric: i RS } a 4) virginia Thev lived together as husband and wife unti! a one = ae yb | IO Cpicmoer Zt, 1954 . Tv" i oe » On September 21, 1954 the Plaintif¢ e laintiff has been living apart from Defendant throuch his fault, that is of the Defendant's threats to inflict bodily misconduct of commenced living With her“ par nts. Since then Dp because injury on het } and because of other 1} Sy 7 ee eayer a i canal a | are ad F ture that the Plaintiff would prefer not to allege it but ef which Defendant is fully aware. Defendant gave Plaintiff ¢190 when they parte ~nce tnen he has failed and refused to,give her anv mone 135, N.Y.S.2d 518: Guibord ° such an intimate . a Al4 to maintain herself or to contribute to her maintenance The Defendant is a man of vreat inherited wealth. He has ample ability to maintain and contribute to the main- tenance of the Plaintiff. Plainuff has-no money. He: parents. although under no iegal obligation to do so, have nonetheless supported ‘and maintained her. Plaintiff has not the means with which to maintain herself and to em- ploy counsel to bring and prosecute this action. Wherefore, Plaintiff prays 1. For a decree pendente lite: ‘a’ Requiring Defendant to pay Plaintiff such sum or sums of money as may be reasonable under th. circumstances of the parties for: I} Temporary alimony or maintenance, and II) Attorneys’ fees and court costs. - . (b) Enjoining Defendant from molesting, haras- 7 s? om ’ sing or harming Plaintiff. 2. For a final decree: (a} Granting Plaintiff maintenance or alimony from’ Defendant unconnected with causes of divorce under Section 65.10, Florida Statutes. se tin, laine ff "y . °c” . anel . aed (b) Granting Plaintiff attornevs’ fees and cou 7 @ «- . 420 Sols ? | a ao. & Wi such other and further reiief as Plaintiff mav be equitably entitled to receive. Rucerpt frem Astor's so-called Croes | Claim filed ia the Circuit Court, Dade Co., Fla., Chamcery Case Zo. 174,368. (R.93-S, Def. Ex. 1, R,151-2) 727) be Suck ARAASE. dakawe’ Meee tc b) The: said putative marriage was induced bv eit and fraud on the part of the plaintiff (ec) -The plaintiff has practiced extreme cruelty upon the defendant. ‘di That the defendant had a living wife at the time the aforesaid putative marriage was entered inter Inasmuch, Therefore. as the defendant is without relief in the premises save in a court of equity. he respectfully prays that the aforesaid putative marriage between him and, the plaintiff be decreed by this Honorable Court to be null and void, in initio. and forthwith cancelled and annulled. or. in the alternative. that’ he be given a decree of divorce a viniculo Matriment from the plaintiff. And that he may have such other and additional re- hef in the premises as In equity he mav he entitled to re- ceive. - Final Decree entered February 24, 1959. recorded on Feb. ruary 25, 1958. in Chancery Order Book 1326 page 443, as follows: (A (02 4 = ‘Caption omitted | This cause-came on for final hearing on the Complaint ‘as amended and Answer. At the conclusion of the plain- tiff's evidence and the plaintiff Raving closed his case, defendant moved to dismiss the action. The Court reserved Twing on the Motion, Defendant thereupon put on her evidence and rested and the plaintiff thereupon rested The case was then argued by counsel for. the respect:ve parties. Defendant ‘also put on evidence in support of her Petition for Attornevs Fees and Expenses incurred and ‘plaintiff put on evidence ‘in response thereto. Upon con- sideration thereof it is Ordered, Adjudged and Decreed that: 1. The Court has jurisdiction over the parties and the subject matter. Al6 9 Defendant's Motion to Dismiss this action at the conclusion of the plaintiff's case be and it is hereby granted and the Bill of Complaint be gnd it 1s hereby dismissed. Section 59.08 Florida Stat ites 55.08 Time for Taking Appeals or Filing Petitions for ‘Certiorari. Appeals, including petitions for review by certiorari, or proceedings in the nature of certiorari, shall he taken or filed within sixtv davs from and after the entry cf the order, decision. judgment, or decree appealed from. As amended, Laws 1945, c. 22854. § 8 Excerpts. from Final Decree dated April t, 1955. entered in Dolores’ Florida Suppert Action€« . ¥/ The defendant. asserting that he has not been divorced from a former wife because the decree of a Mexican court sought and obtained by him is void, contends: that the parties are not husband and wife. The contention, in my opinion, is not tenable. It is my view that he cannot ques- tion the validity of the Mexican decree because he not only sought and procured it, but took advantage of it by re- marrving --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0537%3A3. Public record. Not legal advice.