Satenstein v. Satenstein ( 1965 )

Appeals from orders of the .Supreme Court at Special Term, entered on December 17, 1964 and January 28, 1965 in New York County, which granted motions by plaintiff for orders (1) directing defendant to appear for examination before trial, and (2) fixing and confirming a counsel fee of $5,000 to plaintiff.

Memorandum by the Court.

Orders, entered on December 17, 1964 and January 28, 1965, modified, on the law and the facts, and in the exercise of discretion, to reduce the counsel fee to the sum of $1,500 already paid, with leave to the plaintiff to apply to the trial court for additional counsel fees; and orders, as modified, affirmed, without costs or disbursements. In view of the withdrawal of defendant’s answer, a counsel fee of $1,500 should be adequate to cover the services of plaintiff’s attorney in the prosecution of the action, and a further allowance will be justified only in the event such prosecution requires unforeseen and extraordinary services. This action, as an action to declare the invalidity of a Nevada decree of divorce, is a “ matrimonial action” (CPLR 105, subd. [m]). The rendition of judgment on default of answering necessitates application to the court, and since the defendant has appeared in the action, he is entitled to notice. As in every “ matrimonial action ”, the plaintiff will be required to present proof of the essential allegations of her complaint and the court should make and enter written findings of fact on basis thereof (CPLR 3215, subd. [b]). There .is no sound reason for a court to engraft an exception upon the provisions of CPLR to permit a judgment for default to be entered in this one type of “matrimonial action” upon the complaint without independent proofs and without findings of fact. Clearly, in furtherance of CPLR objectives, its express and unambiguous provisions should be applied and enforced with uniformity without regard to whether or not such provisions conflict with the practice under the former Civil Practice Act. The plaintiff, in her attack upon the Nevada decree, alleges that the defendant did not establish a bona fide residence in the State of Nevada. Under the circumstances here, it appears that, absent testimony of the defendant, the plaintiff will have difficulty in presenting the necessary proofs to establish such allegation. The examination before trial of the defendant, as directed by Special Term, is expressly limited to the matter of defendant’s domicile and, thus, should not unduly burden or harass the defendant, unless he chooses to make it do so. Settle order on notice fixing date for examination to proceed.