In the Matter of Bertram M. Kay, Respondent, v. Barbara K. Arn, Appellant

In the Matter of Bertram M. Kay, Respondent, v. Barbara K. Arn, Appellant. [MAJORITY] Order entered December 5, 1967, herein appealed from, unanimously reversed, on the law, without costs or disbursements, and the matter remanded for a hearing to determine the domicile of appellant. The parties were formerly husband and wife. Since their divorce by decree of a Mexican court both have remarried and the children of the marriage are now with appellant who is presently living in Brussels, Belgium with her husband. Respondent was aware, prior to their departure, that such trip was contemplated and apparently made no legal effort to prevent the voyage. At the time this proceeding was commenced the children and appellant were without the State and living in Belgium. Upon these facts mere service by mail upon appellant, and personal service upon her attorneys pursuant to CPLR 403 (subd. [d]), without more, will not serve to confer jurisdiction upon the court. There is no concession of domicile here as in the Kades case (Matter of Kades v. Kades, 23 Mise 2d 222, affd. 10 A D 2d 919), nor is appellant physically within the jurisdiction (Matter of Horowitz v. Huttler, 39 Mise 2d 11) so that a court might enforce its command directed to her even though the children are without the State (May v. May, 233 App. Div. 519). To support jurisdiction in the case before us it must be shown that appellant maintained a domicile within the jurisdiction at the time of the commencement of the action. In our view the request should have been granted for a continuance of the hearing, or an adjournment for a short time in order to present material bearing on the issue. Concur — Botein, P. J., Stevens, Capozzoli, Tilzer and McNally, JJ.