Opinion
May 12, 1959
The order entered in the Domestic Relations Court on October 24, 1958, after trial, is reversed on the facts and on the law, and a new trial ordered. There is no doubt that the Domestic Relations Court, as an incident to the exercise of its jurisdiction on petitions charging nonsupport, may determine whether the parties are husband and wife. ( Loomis v. Loomis, 288 N.Y. 222, 224.) The alleged wife sought an increase in the sum directed by a prior order for support, and on the trial of that issue, the question of status was raised. The alleged husband defended upon the ground that the marital relationship of the parties had been terminated by a decree of divorce granted by a court of competent jurisdiction in Puerto Rico. To counter the wife's denial of a valid divorce, he offered a certified copy of the decree in evidence, which was received, but proof of service by publication was excluded. The inquiry with respect to the divorce was terminated by the court over objection of counsel, upon a statement by the Assistant Corporation Counsel that the question of status of the parties had been considered in a prior proceeding. An examination of the original records indicates that it was not considered and that an order was entered without objection. Under the circumstances, the record on appeal is insufficient to sustain the order.
Concur — Botein, P.J., Rabin, M.M. Frank, McNally and Stevens, JJ.