Nicit v. Nicit ( 1994 )

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied respondent’s motion for summary judgment dismissing the petition. The record supports the court’s determination that petitioner had acquired a bona fide domicile in Alabama at the time the divorce action in that State was commenced (see, Wilke v Wilke, 73 AD2d 915; cf., Manasseri v Manasseri, 121 AD2d 697). The evidence submitted by respondent is insufficient to support his allegation of lack of domicile (see, 48 NY Jur 2d, Domestic Relations, § 1474, at 415). The instant proceeding is not barred by res judicata (see; Nikrooz v Nikrooz, 167 AD2d 334, 335; 48 NY Jur 2d, Domestic Relations, § 1465, at 399). We reject respondent’s contention that petitioner is precluded from maintaining this proceeding on the ground that she obtained the foreign divorce judgment (see, Domestic Relations Law § 236 [B] [2], [5]; Mattwell v Mattwell, 194 AD2d 715). (Appeal from Order of Supreme Court, Seneca County, Harvey, J.—Equitable Distribution.) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.