Opinion
November 16, 1955.
Appeal from Columbia County, Supreme Court.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Appellant appeared in the action instituted by respondent in the State of Florida and he became bound by the decree, which is entitled to full faith and credit by the courts of this State in the absence of fraud ( People ex rel. Herzog v. Morgan, 287 N.Y. 317). Appellant attempted to allege fraud in his answer to the petition herein. He asserted that the Florida decree of divorce was void so far as the custody of the children was concerned because respondent concealed from him the fact she was pregnant by another man. The Special Term held this to be insufficient in view of appellant's allegation elsewhere that he had, prior to the Florida action, instituted an action against respondent for divorce in this State, and in that action had charged respondent with adultery over a considerable period of time. The answer of appellant does not contain any clear-cut allegation to the effect that there has been any change of conditions since the Florida decree was rendered. Appellant does allege that respondent has a violent temper, and has struck the children at times until they became black and blue, but where and when such acts took place is not shown. This matter was determined without a hearing and on the pleadings alone, a practice we would not ordinarily approve in a habeas corpus proceeding to determine the custody of children. It is said that both parties consented to this procedure but we find no stipulation in the record to that effect. However, on the pleadings in this instance we think the Special Term was justified in sustaining the writ. Order unanimously affirmed, without costs and without prejudice.