106 A.D. 111 | N.Y. App. Div. | 1905
The decision ■ of this case-. involves the validity of a decree of divorce absolute obtained by the defendant against the plaintiff in the Court of Chancery of New Jersey, in the year 18(96, on the ground of willful, continued and obstinate desertion for more than two years, a ground for absolute divorce recognized under the laws ■ of the State of New Jersey, but hot by the laws of the State of New York. The divorce in quéstion was not obtained by service of process on the defendant (the plaintiff in this action) within the State of New Jersey, nor is there any pretense that he made any
In 1886 Mrs. Percival, the defendant here, brought suit against her husband, the plaintiff here, in this court, to obtain a separation, because of abandonment and failure to support her. She alleges a marriage by agreement-—a. so-called common-law marriage — in 1866, and that they had lived together openly as husband and wife for twenty years. Percival answered her complaint, denying that she was his wife, alleging affirmatively that she had lived with him. as his mistress, “ with full understanding that such was the relation between the parties.” The Case was tried in New York county in open court. It appeared that Percival introduced,her to his family, lived with her in the home of his parents, joined with her in the execution of legal papers as her husband, and the trial justice' at Special Term found in her favor ;. she had judgment that she Became his wife in 1866, that she had “ conducted herself as a true and pure wife ” to him during the twenty years preceding the decree, and decreeing a separation between the parties. Percival appealed to the General Term in the first department, where the judgment below was affirmed, and again to the Court of Appeals where, he was again unsuccessful. (Percival v. Percival, 47 Hun, 634; affd., 124 N. Y. 637.) Whatever view we may entertain as to the propriety or ethics of non-ceremonial marriages — common-law marriages, as they are called— they are recognized in law and in morals. This court at Special and General Term found the husband, the plaintiff here, guilty of wrong and perfidy towards the woman, his wife, accentuated by the false accusations made against her in his pleading. So far as this court is concerned, we are bound by the judgment and findings that'she became his wife in 1866, and' lived with him honestly and properly for twenty years, when he left her without cause, with the result that the court separated them forever. He began the suit at bar against her in 1902, fifteen years after the judgment so rendered against him, alleging .that within jwo years prior to the commencement of the action she had committed adultery, and was openly living with the alleged corespondent as his wife. It is this complaint which is now on trial. The defendant, Mrs. Percival, offers in evidence the' decree of absolute divorce in the New Jersey Court of Chancery, entered in 1896 —
But it seems to. me that when this principle of State policy is invoked, the party invoking it must bring himself within its protection. I think when lie attacks a foreign decree entered against him without personal service on the ground that the foreign court was without jurisdiction, he must show that he was a resident of the State of New York at the time the foreign decree was obtained. I Will not say that this domicile may not be shown indirectly or that the court may, not indulge' in presumptions based on the recitals in judgments or the like, but where, as in this case, there is a hiatus of fifteen years between the judgment upon which he relies as establishing his domicile in 1887, and the beginning of his divorce suit in 1902, and where the foreign litigation has occurred in the meantime, where there is no intimation or suggestion of bad faith on' the part of the plaintiff in the foreign State, no attempt to evade our laws or escape their effect, in such case, I hold that the court should not indulge in presumptions to condemn the defendant. None of the salutary reasons for rigid supervision of. foreign decrees of divorce are interfered with or questioned by enforcing such a rule. The court still disregards the foreign decree if upon its examination of the facts it is satisfied that an attempt, has been
Judgment for defendant dismissing complaint, with costs.