Lewis S. Rosenstiel, Respondent, v. Susan L. Rosenstiel, Appellant. (Annulment Action.); Susan L. Rosenstiel, Appellant, v. Lewis S. Rosenstiel, Respondent. (Injunction Action.), 21 A.D.2d 635

Botein, P. J. Plaintiff husband and defendant wife were married in New York on November 30, 1956. On April 26, 1962 plaintiff brought an action to annul the marriage, alleging that on January 12, 1945 defendant married one Felix Ernest Kaufmann and remains married to him.

In answer, defendant pleaded a decree of divorce obtained by Kaufmann on October 2, 1954 in the First Civil Court, District of Bravos, City of Juarez, State of Chihuahua, Mexico, on grounds of “ ill treatment and incompatibility of characters.” Consolidated with the annulment action is an injunction action by defendant to restrain plaintiff from suing her for matrimonial relief in any jurisdiction other than New York. After submission of all of the evidence the trial 'court held that there was 11 not any material issue of fact for this jury to decide ”; and dismissed the jury.

The court concluded that the Mexican decree had been rendered by a tribunal without jurisdiction, declined therefore to recognize it, and entered a judgment, from which defendant takes this appeal, granting the requested annulment and dismissing the injunction action. The validity of the questioned decree under Mexican law is not disputed. Recognition has been refused primarily on the ground that neither Kaufmann nor defendant had been domiciled in the State of Chihuahua, and, in the view of the trial court, domicile is ‘ ‘ the sine qua non requisite for jurisdiction to grant a divorce ’ ’.

Undeniably Kaufmann and defendant were not Mexican domiciliaries as the concept of domicile is generally understood. On the same day that Kaufmann entered Mexico he returned to the United States, in the interim presenting his divorce petition to the court in the City of Juarez together with a certificate issued by the office of the municipal president showing that he was registered in the official book of residents of the city. On the following day defendant appeared in the suit by an attorney, who on her behalf submitted to the court’s jurisdiction and admitted the allegations of the complaint.

The decree was also entered on the same day. As stated in Drew v. Hobby (123 F. Supp. 245, 247), “ it was long ago decided in New York that lack of domicile is not necessarily a bar to the recognition of a foreign divorce.” As authority for the statement the court correctly cited Gould v. Gould (235 N.

Y. 14, 29), where the Court of Appeals, discussing divorce judgments of the courts of France, had said: “Even though it be assumed that we are not required because of the absence of domicile to give effect to their judgments, we are not prohibited from doing so where recognition, in conformity to the principle of comity, would not offend our public policy. ’ ’ The fact pattern in Gould v. Gould is of course remote from that before us. The Goulds, though not domiciled in France, had resided there for years and the divorce was granted for adultery.

But the Court of Appeals was quite aware of the possible impact of its decision, expressly leaving open for future determination whether a decree would contravene our policy if based on a transitory presence in the rendering jurisdiction or on grounds other than adultery (235 N. Y. 14, 29, 30). New York policy on such questions was thereafter expounded in Glaser v. Glaser (276 N. Y. 296), in which the wife charged expressly ‘ ‘ that the main purpose of her husband in going to the foreign State was to procure the divorce ” (p. 299); and this policy was summed up in Matter of Rhinelander (290 N.

Y. 31, 36-37) thus:“ It is no part of the public policy of this State to refuse recognition to divorce decrees of foreign states when rendered on the appearance of both parties, even when the parties go from this State to the foreign state for the purpose of obtaining the decree and do obtain it on grounds not recognized here.” Since it is common knowledge that the parties, with rare exceptions, return here, the quotation indicates rather plainly New York’s indifference, in the juridical sense, as to whether they achieved domiciliary status in the foreign State, if both appeared there.

Accordingly, domicile as distinguished from a visit has been held to be a jurisdictional requisite where but one spouse enters the foreign country and proceeds ex parte (Imbrioscia v. Quayle, 278 App. Div. 144, affd. 303 N. Y. 841; Rosenbaum v. Rosenbaum, 309 N. Y. 371); and recognition will be refused the “ mail-order divorce ”, so alien to our legal tradition, where neither spouse enters the foreign country (Caldwell v. Caldwell, 298 N. Y. 146, 148). In the last-cited case the court noted: “Neither the defendant nor his wife visited Mexico.

The decree contains no recital that either party to the action was even physically present or domiciled in Mexico. ’ ’ Our courts, however, without inquiring into domicile, have frequently recognized Mexican decrees if, as here, the petitioning spouse has appeared in person and the answering spouse in person or by attorney (Leviton v. Leviton, 6 N. Y. S. 2d 535, mod. 254 App. Div. 670; Laff v. Laff, 5 Misc 2d 554 [Scileppi, J.], affd. 4. A D 2d 874; Heine v. Heine, 231 N. Y. S. 2d 239, affd. 19 AD 2d 695; Busk v. Busk, 229 N. Y. S. 2d 904, mod. 18 A D 2d 700; Matter of Fleischer, 192 Misc. 777; Bowen v.

Bowen, 22 Misc 2d 496 ; Weibel v. Weibel, 37 Misc 2d 162; Mountain v. Mountain, 109 N. Y. S. 2d 828; Caswell v. Caswell, 111 N. Y. S. 2d 875; Costi v. Costi, 133 N. Y. S. 2d 447; Fricke v. Bechtold, 8 Misc 2d 844; Sonnenberg v. Sonnenberg, 203 N. Y. S. 2d 118; Skolnick v. Skolnick, 24 Misc 2d 1077; see Drew v. Hobby, 123 F. Supp. 245, supra). The decisions last cited and others — rendered at various times during the past quarter-century—of course reflect impressive and reiterated judicial opinion that recognition of the decree with which this case is concerned would be consistent with New York’s public policy.

No change in public policy has been identified for us; and it is significant that despite the continuing awareness of those decisions in the field of law and in the community, -i the Legislature has never sought to limit their doctrine. (Compare the course of decision in the United States Supreme Court summarized in Klarish v. Klarish, 19 A D 2d 170 [Bergan, J.], affd. 14 N Y 2d 662.) The trial court also indicated that Kaufmann and defendant had been guilty of collusion and violation of

section 51 of the Domestic Delations Law (now General Obligations Law, § 5-311); but in our opinion the evidence does not sustain such a finding (see Matter of Rhinelander, 290 N. Y. 31, supra; Graham v. Hunter, 266 App. Div. 576; Dodge v. Dodge, 98 App. Div. 85; Yates v. Yates, 183 Misc. 934 [Van Voorhis, J.]; Heine v. Heine, supra). The annulment should be vacated and the injunction action reinstated, on the law and on the facts, without costs. Settle order on notice. The opinion by Conway, J., dissenting, in Matter of Rathscheck (300 N.

Y. 346, 355) shows clearly that he did not intend his remarks about domicile in Caldwell v. Caldwell (298 N. Y. 146, 149) to be taken as a departure from the doctrine of Gould v. Gould. Speaking for myself, were it necessary to reach the estoppel issue, I would agree with the policy considerations expressed by Mr. Justice Valente in his concurring opinion, although I am not fully convinced that the present state of the law permits such a result.