Edwin R. Wolff for petitioner.
Daniel D. Bier for respondent.
Respondent, in turn, argues that the New Jersey judgment by its terms has no extraterritorial effect; that it is merely a futile injunction against a previously entered Nevada divorce decree; and that it lacks subject-matter jurisdiction because predicated on an assumed New Jersey domicile of respondent, which, it is now urged, did not then exist. And respondent further contends, in disregard of the clear and express language of the New Jersey judgment, that "It must be borne in mind that the New Jersey action was never an action inquiring into the jurisdiction of the Nevada Court." On the contrary, that was the objective of the New Jersey action and judgment; and respondent's specious arguments overlook established principles embodied in Restatement of the Law, Conflict of Laws:
"§ 96.
Enjoining Acts in another State. A state can exercise through its Courts jurisdiction to forbid a party, who is subject to its jurisdiction, to do an act in another state.
"§ 97. * * * A state can exercise through its courts jurisdiction to order or to forbid the doing of an act within the state, although to carry out the decision may involve doing an act or affecting a thing in another state.
"§ 451.
Res Judicata and Jurisdictional Facts. A party appearing and participating in proceedings in a court of any state will be precluded from questioning the jurisdiction of the court over his person in any subsequent proceeding in that state, or in any other state if the court in which he appeared purported to render judgment against him.
"Caveat: The Institute expresses no opinion whether and how far a party appearing and participating in the proceeding in a court of any state is precluded from subsequently questioning the jurisdiction of the court over the subject matter of the action in the courts of that state or any other state if the Court in which he appeared purported to render a judgment against him. * * * The principles of former adjudication described in § 450, not only apply to the effect of a judgment on legal obligations but apply to all findings of fact upon which the judgment was based except in so far as the facts found are necessary to the jurisdiction of the court rendering the judgment. * * * If a party enters an appearance in court and formally engages in prosecuting or defending a cause of action, such a party is foreclosed from raising the question of the jurisdiction of the court over his person in any subsequent proceeding." (Pp. 540-541.)
is my impression and hope that both parties, being intelligent, may be persuaded by this exhortation, especially since a July 22, 1952, letter from petitioner's counsel proposes what appears to be a fair and reasonable plan. If, nevertheless, the parties fail to agree upon and carry out a mutually satisfactory visitation plan, upon request of either party any controversy concerning visitation may be scheduled for hearing before the Justice then presiding at the Bronx County Family Court or, preferably, there may be recourse to the Supreme Court, either in the suggested plenary matrimonial action or a habeas corpus proceeding. For, it is at least arguable that the Family Court lacks subject-matter jurisdiction to order visitation of a child of divorced parents. This statutory court of limited jurisdiction can exercise only such powers as have been expressly conferred upon it by the Legislature; and the only power covering visitation is contained in subdivision (7) of
section 92 of the New York City Domestic Relations Court Act, reading:
"(7) In case where a child is involved to make an `order of protection,' in assistance or as a condition of an order for support, setting forth conditions of behavior to be observed for a specified time which shall be binding upon
husbands or
wives, or both, as circumstances may require, and which must be reasonable. Such orders may require
either spouse (a) To stay away from the home or from the
other spouse or children; (b) To permit the other to visit the children at stated periods; (c) To abstain from offensive conduct against the other or against the children; (d) To give proper attention to the care of the home; (e)
To refrain from acts of commission or omission that tend to make the home not a proper place for the other spouse or the children." (Emphasis supplied.) (See
"Horner" v. "Horner", 184 Misc. 989; affd.
sub nom.
Matter of Hartstein v. Hartstein, 269 App. Div. 770; see, also,
Kinsey v. Lawrence, 100 N. Y. S. 2d 597, 606, 607.)
So, there might be an inconsistency between respondent's request for an order of protection and his contention that petitioner is no longer his spouse. Notice of today's decision and order shall be given to the parties pursuant to the subjoined direction. [*] The opinion as filed sets forth the true names of all parties but as here published substitutes fictitious names and disguises certain other details in consonance with the spirit of section 52 of the New York City Domestic Relations Court Act (L. 1933, ch. 482).