Seyitoglu v. Seyitoglu , 53 A.D.2d 606 ( 1976 )

In these matrimonial actions in which the appeals have been consolidated, the husband obtained an annulment of the parties’ marriage in Action No. 1; in Action No. 2 the wife seeks a divorce on the ground of abandonment. The husband appeals from two orders of the Supreme Court, Queens County, both dated April 1, 1975, (1) the first of which, in Action No. 1, after a hearing, granted the wife’s motion to vacate and set aside the judgment of annulment, and (2) the second of which, in Action No. 2, granted the wife’s motion for temporary alimony and a counsel fee and denied his cross motion to dismiss the complaint. Order in Action No. 1 affirmed, without costs or disbursements. Order in Action No. 2 modified by deleting (1) the second decretal paragraph thereof and (2) the words "and alimony” from the first decretal paragraph thereof. As so modified, order affirmed, without costs or disbursements, and Action No. 2 is remitted to Special Term for an immediate hearing and a new determination on the wife’s application for temporary alimony. After a hearing limited to the issue of personal service upon the wife in Action No. 1, Special Term found that it lacked personal jurisdiction over her. On the husband’s appeal, "a very strong preponderance of evidence against the decision would be required to enable us to interfere” (Anderson v Anderson, 74 Hun 56, affd 147 NY 719). However, on this record, the spirit of fairness dictates that the husband be given the opportunity to have the award for temporary alimony reconsidered. Hopkins, Acting P. J., Margett, Damiani, Titone and Hawkins, JJ., concur.