Citation Numbers: 50 A.D.2d 867
Filed Date: 12/22/1975
Status: Precedential
Modified Date: 1/12/2022
— In an action for divorce, the plaintiff husband appeals from a judgment of the Supreme Court, Westchester County, dated March 10, 1975, in favor of defendant, upon the trial court’s dismissal of the complaint at the close of his case, at a nonjury trial. Judgment reversed, on the law, without costs, and new trial granted. No fact questions were presented on this appeal. It is undisputed that the parties resided in Pound Ridge, Westchester County, for many years as man and wife. In June, 1967 a judgment of separation between the parties was entered in the Supreme Court, Westchester County. That judgment directed plaintiff to pay a certain sum for the support of defendant and their infant son. There was proof adduced that, at one time in 1967, plaintiff fell into arrears in the payment of that support and had been held in contempt. He purged himself of the contempt by the payment of the arrears in 1968 and, from then until the date of trial, plaintiff has been current in the payment of support, with the exception of a few occasions when he was unavoidably late in his payments, largely because he was working out-of-town. There is no claim that any other part of the judgment of separation was not fulfilled. Plaintiff continued to live in Pound Ridge until May 7, 1974, when he sold his home there, purchased a truck and went into the business of hauling goods. He maintained no permanent residence and, as a practical matter, lived on the road, maintaining a post office box in Pound Ridge. He commenced this action on June 8, 1974. Special Term dismissed the complaint (1) for lack of jurisdiction, concluding that plaintiff had failed to show bona fide residence in this State as required by statute, and (2) for the reason that plaintiff had not complied with the judgment of separation- — in that it had become necessary to bring proceedings against him and hold him in contempt — before arrears in support payments were paid. Subdivision 2 of section 230 of the Domestic Relations