Summary
holding that husband's marriage to second wife, which occurred after judge issued order granting divorce from first wife but before court entered final judgment, was nonetheless valid because entry of judgment “constituted nothing more than a mere formality or ministerial act”
Summary of this case from Joseph v. HolderOpinion
April 15, 1991
Appeal from the Supreme Court, Kings County (Schneier, J.).
Ordered that the order is affirmed, with costs.
In this matrimonial action, the Supreme Court, on January 20, 1988, upon the uncontested withdrawal of the defendant husband's answer and after an inquest on the plaintiff first wife's complaint, stated that a "judgment of divorce [is] granted" to the first wife and directed the parties to submit separate findings of fact, conclusions of law, judgment and minutes on notice. Before the judgment of divorce was signed on March 31, 1988, the husband married the second wife on February 10, 1988.
The husband died on December 27, 1988. By letter dated May 1, 1989, the Social Security Administration advised the second wife that she was not entitled to Social Security benefits as the husband's widow because her marriage to the husband was void, in that her "husband's prior marriage had not ended when [she] married him".
The second wife moved in the divorce action to have the judgment dated March 31, 1988, amended nunc pro tunc so as to provide that it became effective as of January 20, 1988. Contrary to the first wife's contention, the second wife, although not a party to the divorce action, had standing to make the motion (see, Johnson v. Johnson, 198 Misc. 691, 695, affd 277 App. Div. 114 3).
It is clear that the trial court rendered its determination on January 20, 1988, and the entry of the final judgment of divorce on March 31, 1988, constituted nothing more than a mere formality or ministerial act. Therefore, the second wife's application being meritorious, the court properly amended the judgment of divorce nunc pro tunc (see, Lynch v. Lynch, 13 N.Y.2d 615; Cornell v. Cornell, 7 N.Y.2d 164; Jayson v. Jayson, 54 A.D.2d 687; Johnson v. Johnson, 277 App. Div. 1143; see generally, Annotation, Divorce — Decree Nunc Pro Tunc, 19 ALR3d 648). We note that the amendment of the judgment nunc pro tunc does not interfere with the vested rights of the first wife's son since regardless of the second wife's status as the husband's widow, the son is still entitled to his fair share of Social Security benefits as the surviving child of the husband. Sullivan, J.P., Eiber, Rosenblatt and Ritter, JJ., concur.