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• Title: Matter Umberto DI Giovanni v. Assunta S. DI Giovanni
• Author : Supreme Court of New York
• Release Date : January 28, 1958
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 68 KB

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[6 A.D.2d 1038 Page 1038] In 1946 petitioner husband obtained a decree dissolving his marriage to respondent wife pursuant to section 7-a of the Domestic
Relations Law, on the strength of his assertion that 11 years earlier his wife had gone to Abyssinia and disappeared. Subsequent
to the decree he remarried. Respondent, his first wife, came to the United States in 1957 and alleges that she brought this
motion to vacate and set aside the interlocutory and final orders dissolving the marriage as soon as she learned of the existence
of the decree. Special Term granted her motion in all respects, granting leave to respondent to serve and file an answer in
the original action. Although the decree was granted on the presumption that respondent, who had not been heard from for over
11 years, was dead, it is not to be set aside merely upon her reappearance (Anonymous v. Anonymous, 186 Misc. 772, affd. sub.
nom. Ragione v. Ragione, 274 App. Div. 752, affd. 300 N. Y. 655). If, however, petitioner at the time of obtaining the decree
knew or could readily have ascertained the whereabouts of respondent, the decree would have to be vacated for fraud (Matter
of Neiman, 176 Misc. 552). In such event, no further proceedings on the petition would be required, for the very fact of respondent's
presence would necessitate dismissal of the petition (Matter of Powell, 123 Misc. 172). Contrariwise, if petitioner was not
guilty of fraud in obtaining the orders or if respondent is barred by her conduct from attacking the said orders, they should
remain undisturbed. (The court may only conjecture as to the issues that will be raised by petitioner, since he did not oppose
this motion on the merits, claiming improper service of the moving papers.) However, the determination as to these issues,
involving as it does marital status, should not be made upon affidavits alone, but there should be a hearing on the issue
of fraud, as aforesaid, and any other issues that may properly be raised. We find no laches in respondent's conduct subsequent
to her arrival in the United States in January, 1957. Order vacating the interlocutory and final [6 A.D.2d 1038 Page 1039]

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