101 A. 13 | Conn. | 1917
The parties intermarried in New York in June, 1912, the husband being then and now a citizen of Connecticut. They lived together in Connecticut until May 23d 1913, when the wife left her home and went to New York, where she has since remained, refusing to live again with her husband. They have one child between three and four years old.
On May 24th, 1916, the plaintiff husband brought this action for divorce on the ground of desertion, describing his wife as a resident of Terrytown in the State of New York, and alleging that the desertion began on or before May 23d 1913. The defendant appeared, denied the desertion, and filed a cross-complaint for a divorce on the ground of intolerable cruelty. From a judgment awarding the husband a divorce on the ground of desertion, the wife appeals.
The finding of facts, which is not excepted to, disposes of all the controverted questions of fact as to desertion and cruelty in the husband's favor, and the only reasons of appeal which are pursued on the brief relate to the effect which ought to have been given to an agreement in writing entered into between the parties in December, 1913, and to a judgment of separation and for alimony, made by the Supreme Court of New York in February, 1915, in an action brought by the wife, in which the husband did not appear.
The alleged agreement of separation is contained in *610 a writing, Exhibit D, signed by the plaintiff and defendant, which recites that Helen C. Pettis has left her husband and resolved that she will not thereafter live with him; that Clinton M. Pettis desires the companionship of his child, but recognizes that it needs a mother's care and is unwilling to support it, except in his own home, any longer than is necessary for its physical well being; and that for the best interest of all concerned, the parties have agreed: (a) that Helen C. Pettis, in consideration of $800 to be used for the support of the child, will support it and make no demand whereby her husband is to be chargeable with its support, and will not pledge the husband's credit for her or its support, so long as she shall refuse to live with her husband and refuse to allow the child to live with him; (b) that Clinton M. Pettis will allow the wife to have the exclusive custody of the child during its tender years, and so long as she will support the child and keep her agreements, it being understood that he is willing to support the child in his own home, and that the child, when it reaches a suitable age, shall elect whether to live with its father or its mother; (c) and that nothing therein contained shall be construed as a condonation on the part of Clinton M. Pettis of the wilful desertion of his wife. At the same time and as a part of the same transaction, Helen C. Pettis gave to her husband a quitclaim deed, Exhibit E, of all her interest as wife and widow in any property owned by him or of which he might die possessed.
The appellant's claim is that this agreement conclusively shows that the husband consented that his wife might live apart from him, and that therefore he cannot charge her with wilful desertion from and after the date of the agreement. Tirrell v. Tirrell,
Manifestly, this contract does not, on its face, express any agreement on the husband's part that the wife may live apart. On the contrary, it attempts, at least, to exclude the possibility of a construction embodying such an agreement; and in that respect it resembles the agreement printed in the margin of the decision in Atherton v. Atherton,
The remaining question is as to the legal effect which ought to have been given in this action to the New York judgment for separation. That judgment was not pleaded, either in the defendant's answer as a bar to the action for divorce on the ground of desertion, or in the defendant's cross-complaint as a conclusive adjudication of the husband's cruelty. An exemplified copy of the order, the notice, the affidavit on which *612 it was granted, the summons, complaint, judgment, and findings of fact and law, was, however, received in evidence without objection. From these papers it appears that the judgment was based upon a complaint charging the husband with cruelty and upon proofs in support thereof; that the judgment in terms decrees that the parties be forever separated from bed and board, and provides for monthly alimony until the further order of the court; and that the husband did not appear in that action and was not otherwise served with process than by publication and by leaving a copy of the summons, complaint and order of service, with him at his home in Connecticut.
Upon this state of the record, it is certain that as against the nonappearing, nonresident husband, the New York judgment is not enforceable as a matter of strict constitutional or private international law. Haddock
v. Haddock,
The next question is whether it affords any justification for the wife's continuing to live apart from her husband from and after its date. The complaint admits that Helen C. Pettis is a resident of New York, which undoubtedly has the right to control the marital status of its own citizens subject, of course, to the necessary consequence, pointed out in Haddock v. Haddock,
Nevertheless, the question still remains whether it ought to be received here as a matter of comity or of public policy. In Gildersleeve v. Gildersleeve,
It is apparent from the foregoing, that the effect to be given to the New York decree of separation depends upon whether it is a judgment purely in personam, or whether it is a judgment affecting the marital status. In the former case, it is, as against the nonresident, nonappearing husband not served with process, wholly void, and entitled to no consideration legally *615 or for reasons of comity or public policy. If, however, it affects the marital status, comity and consistency would require us to recognize it as valid in this State.
A decree for judicial separation, when issued by a competent court having jurisdiction in personam over both spouses, is entitled to full faith and credit in every State, and will operate there as a bar to a subsequent action for divorce on the ground of desertion, brought while the decree for separation remains in full force.Harding v. Harding,
In this country there has been some conflict of opinion upon the point, which in England was covered *617
by the Act of Parliament, as to whether a divorce amensa et thoro relieved the wife, temporarily, from the disabilities of coverture; but, with the possible exception of West Virginia, where a peculiar force and effect is apparently given to such divorces by the special provisions of their Code, the reported cases seem to agree that a decree of separation does not affect the marital status. "In our mind the judgment of separation from bed and board is not a final proceeding. The relation of husband and wife still exists. A reconciliation may put an end to the judgment." State ex rel.Stuart v. Ellis, 50 La. Ann. 559, 560, 23 So. 445. "Such a divorce does not dissolve the marriage, though it separates the parties and establishes separate interests between them. . . . The divorce is only a legal separation terminable at the will of the parties, the marriage continuing in regard to everything not necessarily withdrawn from its operation by the divorce."Dean v. Richmond, 22 Mass. (5 Pick.) 461, 465, 467. "The decree of divorce a mensa et thoro between the parties did not affect their status of marriage; it simply justified their separation. Drum v. Drum,
Independently of authority, a decree that simply *618 creates a terminable abnormal relation between husband and wife, cannot be said to affect the underlying marital status. At any rate, we give to this decree of separation all the effect the New York courts claim for it, when we treat it as a temporary or at least a terminable modification of the personal rights and obligations of the parties arising out of the marriage contract, without the slightest intention of rescinding the contract itself. It leaves the contract and the permanent contractual relation untouched, and it excuses one of the parties from the obligation of cohabitation, while still holding the other party to the performance of his other contractual duties. Such a decree must rest on the jurisdiction of a court of equity to regulate the conduct of the parties before it. From the wife's standpoint, it is a personal license to refuse to live with her husband. In theory, a court of equity intervenes to protect her against the assertion of a legal right on the part of the husband, on the ground that it is unsafe and improper to require her to submit to cohabitation. From the husband's standpoint, he is, in effect, prevented from exercising his right to cohabitation, although, as Chancellor Kent says, the right of cohabitation is not destroyed, but is merely suspended; and in theory a court of equity assumes the right to control his conduct for the time being, for the protection of his wife. Such being the nature and effect of the decree when both of the parties are before the court, it is difficult to see upon what theory any extraterritorial effect can be claimed for the decree as against a nonresident, nonappearing defendant not served with process.
When both parties are before the court, the decree is conclusive as to the issues of fact upon which it is based. Harding v. Harding,
We have thus shown that a decree of judicial separation does not affect status; that it is not a final decree, but is terminable at any time by the reconciliation of the parties; that it rests upon the jurisdiction of equity to control the conduct of parties before it; and that, in so far as it purports to regulate the conduct of a defendant, not within its jurisdiction, it is necessarily local in its operation. Such a decree has no resemblance to a judgment in rem. It is purely personal, and therefore, as against a nonresident, nonappearing defendant, entitled to no extraterritorial effect, by way of comity or otherwise.
There is no error.
In this opinion the other judges concurred, except WHEELER, J., who dissented.