Opinion
July 29, 1993
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
The evidence, including plaintiff's own submissions, far from impugning the validity of the divorce decree issued by the courts of the former Soviet Union, clearly demonstrates that despite the "pro forma" nature of the proceedings, both parties submitted themselves to the jurisdiction of the Soviet courts, and that the divorce was valid under Soviet law. And since, by her own admission, plaintiff voluntarily sought the divorce in order to "expedite" her emigration, it cannot be said that there was any fraud or coercion such as would justify nonrecognition of the decree on public policy grounds. While both parties assert that it was their intention to remarry once in the United States, in fact, they did not, and inasmuch as a common-law marriage cannot be contracted in New York (People v. Allen, 27 N.Y.2d 108, 113), no marital relationship between the parties arose by reason of their having cohabited and had a child together subsequent to their divorce. Since the complaint does not state a cause of action for declaratory relief in a "matrimonial action" as that term is defined in Domestic Relations Law § 236 (B) (2), and since plaintiff has not demonstrated a reasonable probability of success, there is no basis for an award of temporary child support (see, Cross v. Cross, 112 A.D.2d 62, 63). While plaintiff is free to seek support under Family Court Act article 4, since paternity is conceded, the preexisting bilateral divorce decree precludes the relief sought by plaintiff under Domestic Relations Law §§ 236 and 237 (Pierot v. Pierot, 49 A.D.2d 838; see also, Greene v. Greene, 90 A.D.2d 533; Merrick v. Merrick, 56 A.D.2d 827, lv denied 42 N.Y.2d 810).
Concur — Sullivan, J.P., Kupferman, Ross and Asch, JJ.
Ellerin, J., dissents and would affirm for the reasons stated by Wilk, J.