Kirrigan v. Kirrigan

15 N.J. Eq. 146 | New York Court of Chancery | 1862

The Chancellor.

The petitioner in this cause seeks a divorce from her husband on the ground of adultery. Upon filing the petition, accompanied by an affidavit of the wife that the defendant designed quickly to depart from the state, and that she believed him to be worth at least thirty thousand dollars, a writ of ne exeat issued, with an order endorsed requiring bond to be given in the sum of five thousand dollars. The case now comes before the court upon a petition of the complainant for an allowance of alimony pendente lite. and counsel fees, and upon a cross-motion on the part of the defendant to be discharged from arrest under the writ of ne exeat. At the close of the argument the case disclosed by the evidence appeared so strong against the right of the petitioner to redress that the defendant was immediately discharged. On a further consideration of the caso, I am entirely satisfied not only that the decision then made was correct, bu,t that the application for ndimony and counsel fees must be denied.

The material facts of the case, as they are disclosed by the petition or established by the evidence, are that the parties were married in the year 1842, in the city of Philadelphia, where they then resided, and where they continued to reside together as man and wife until the year 1854, when, as the petitioner alleges, the husband eloped in company with another woman, with whom he lived in adultery. Proceedings were instituted by the wife in the state of Pennsylvania for a divorce, and on the fourteenth of September, 1854, a decree was made by the court that the husband should pay for the support of his wife six dollars a week. On the thirtieth of January, 1855, the wife obtained an order for an additional allowance of six dollars per week, making, with the former allowance, the sum of twelve dollars per week for the support of herself and her family. The allowance remains unpaid, except the sum of eight hundred dollars, the amount of security required and given for the performance of the order. So far as appears, the orders for maintenance are still in force, and the proceedings for divorce pending and undetermined. From 1854 until 1859, it is alleged that the husband resided principally in the state of New York. On the twenty-third of February, 1859, he obtained, in the Circuit Court of the county of Whitley, in the state of Indiana, a decree of divorce against his wife from the bond of matrimony. In 1861, the complainant instituted a suit against the defendant, in the state of New York, for her maintenance and support, which was dismissed on the ground, as she believes, that the husband was not a resident of that state. The defendant is now transacting, with limited means, a small business in the city of New York, having his home in this state. The complainant, since her desertion by her husband, has resided in the state of Pennsylvania, where she still continues to reside. The adultery complained of is alleged to have been committed in this state within the last eighteen months.

I think it is apparent, from the evidence, that these proceedings were not instituted by the complainant in good faith for the purpose of obtaining a divorce, but for the mere purpose of recovering money from the defendant, or of compel* ling him to support her. The parties are already divorced by the decree of a judicial tribunal, obtained by the husband in the state of Indiana. Proceedings for a divorce were long since instituted by the wife in the state of Pennsylvania, the place of the parties’ domicil, where, if the allegations of the petitioner are true, a decree of divorce has been or may be obtained against the defendant. In 1861 proceedings against the defendant were instituted by the complainant, in the state of New York, for her support and maintenance. On filing her petition for a divorce in this state, the petitioner sued out a writ of ne exeat upon an affidavit that he was worth at least thirty thousand dollars, by virtue of which the defendant was arrested and imprisoned. It appears satisfactorily from the evidence that the value of the defendant’s property was grossly overrated, and that he was unable to give bail, even in the sum of five thousand dollars. I cannot but regard the proceedings on the part of the complainant as instituted in bad faith, (without, as I am convinced, any participation on the part of her counsel,) and as a gross abuse of the process of the court. On this ground alone I should unhesitatingly quash the writ of ne exeat, and refuse to allow alimony. But aside from this view of the case, the petitioner has no title to the aid of this court; as the facts now appear in evidence, she is not the wife of the defendant. The parties have been divorced by a decree of a judicial tribunal in the state of Indiana. It is urged that that decree was fraudulently obtained, inasmuch as at the time neither of the parties were bona fide residents of that state, and that the husband went from the state of his domicil, and took lodgings at a hotel in the state of Indiana, for the mere purpose of obtaining the divorce, and that he returned to the place of his domicil in New York immediately after the decree was obtained. The fact of the fraud is not established. It is declared by the decree, that at the time it was granted the husband was a bona fide resident of the county of Whitley, in the state of Indiana. The court, as appears upon the face of the decree, bad jurisdiction of the parties as well as of the subject matter. 'Both parties were before the court. The defendant appeared by counsel. Five hundred dollars were adjudged to her as alimony by the decree. That sum the wife received from the clerk of the court in full of the alimony awarded by the decree. The wife having appeared to the suit, and having accepted the amount awarded to her by the decree for alimony, will not be permitted to impugn the decree on the ground that it was fraudulently obtained. And even if the decree might be legally assailed upon this, ground, it must be presumed to be valid until the fraud is clearly established in evidence.

The motion for alimony and counsel fees is denied.