Opinion
October 22, 1951.
In an action to declare that the plaintiff and the female defendant are husband and wife, that a decree of divorce, procured by her in Nevada, and her subsequent marriage to the codefendant, are void, and for other relief, order denying defendants' motion to dismiss the complaint pursuant to rule 107 of the Rules of Civil Practice on the ground that plaintiff has not legal capacity (subd. 3) and on the further ground of res judicata (subd. 5) affirmed, with $10 costs and disbursements. The modification by the court of the judgment of separation which had been granted in favor of the wife prior to her procurement of the Nevada decree of divorce, which modification eliminated from the judgment the requirement that the plaintiff in the instant action pay for the support of the wife, cannot support the claim that the court thereby made a binding adjudication that the Nevada divorce and the ensuing remarriage were valid, even though the court might have granted such modification under the belief that the stated foreign decree and the remarriage were valid. Section 1172-c of the Civil Practice Act makes it mandatory for the court to eliminate provisions for support of a wife in a judgment of divorce in her favor or in a judgment annulling a marriage or declaring its nullity. That section has no application to a judgment of separation. Provisions for support in a judgment of separation may be annulled pursuant to section 1170 of the Civil Practice Act, but this section does not require the court to make any finding as to the validity of a foreign decree of divorce or of a remarriage by one of the parties. Nolan, P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.