13 N.J. Misc. 749 | New York Court of Chancery | 1935
This is an action for divorce for the cause of adultery. Following the rule laid down in Feickert v. Feickert, 98 N. J. Eq. 444; 131 Atl. Rep. 576, petitioner contends that defendant took up her residence in Nevada for the purpose of procuring a divorce from him and without any intention of becoming permanently domiciled there; that she fraudulently concealed that fact from the Nevada court and succeeded in obtaining a decree as the result of such fraudulent concealment. The adultery complained of is the connubial intercourse which occurred as the result of defendant’s marriage to Robert Ellsworth Lowe subsequent to the entry of her Nevada decree. Defendant’s answer admits procurement of the Nevada decree but denies that it was fraudulently obtained. The parties were married in Ridgefield Park, in this state, September 20th, 1925, and cohabited there, as husband and wife, until September 22d or 23d, 1932. Dur
On October 31st, 1932, defendant filed her bill in this court for separate maintenance, alleging extreme cruelty. On the same day an order was entered directing this petitioner to show cause why he should not be compelled to pay maintenance and support pendente for defendant and the child. On June 12th, 1933, a consent order dismissing said bill was advised and filed.
On or about January 19th, 1933, defendant and the child left this state for a destination unknown to petitioner. On April 6th, 1933, she filed a complaint for divorce in Nevada for the cause of extreme cruelty. At the time of the Nevada decree defendant had resided in that state for the period required by its statutes to confer jurisdiction of the subject-matter of the suit and of the petitioner herein. Prior to and during that period the matrimonial domicile of petitioner herein was in this state; he did not voluntarily submit himself to the jurisdiction of the Nevada court nor was he served with process within that state. Jurisdiction over him was obtained by publication, in accordance with the statutes of Nevada and personal service of summons and complaint was made on him at his home in this state, on April 20th, 1933, by the sheriff of Bergen county. Adequate time was afforded him to answer and defend the suit. On April 24th, 1933, he filed his bill for injunction in this court, praying, inter alia, for an order directing this defendant to show cause why she should not be perpetually restrained from proceeding with her Nevada suit, that she be commanded to present the truth of the matters alleged and shown in said bill to the Nevada tribunal wherein her divorce proceedings were pending. and in good faith to urge that tribunal to discontinue her said action. The bill alleged, among other things, the pendency of her separate maintenance action in this court, and that by fraud and suppression of the truth she was
On January 10th, 1934, a federal grand jury indicted defendant and Lowe for misapplication of funds and making false entries in the boobs and records of the Teaneck National Bank where Lowe had been employed as cashier. Thereafter, defendant and Lowe were apprehended in California and
Petitioner testified, substantially, as follows: Prior to defendant removing from their home in September, 1932, they had quarreled frequently, the final break having occurred the night preceding such removal. He was present while the moving was in progress, saw defendant but did not speak to her. He remained a few minutes during which he obtained possession of some papers from the second floor and then left. A few days after the separation he wrote two letters to defendant requesting her to return to him. Both letters were forwarded by registered mail and copies retained. She did not answer them. He did not testify as to their contents. Thereafter ho saw and talked to defendant but once and, to use his language, “that was enough.” In this respect he testified that the purpose thereof was to see his son rather than defendant: that he did not on that occasion request her to return to him, and that, with the exception of the two letters, ho did not make, nor cause to be made, any conciliatory overtures, although she resided within a short distance from where he was living and he passed her home daily until she left this state about four months after the separation. Ho admitted that during this period he had seen his wife and child walking along the streets in Ridgefield Park almost daily but that he made no effort to speak to either of them. Petitioner admitted that on one occasion he had forcibly ejected defendant from their home. She had frequently asked him for money in order that she might go to Reno to procure a divorce, thus avoiding local publicity of their marital discord. He had consulted a lawyer, and the chief of police and police recorder, respectively, of Ridgefield Park, concerning defendant’s attempts to “frame” him before the separation; he anticipated trouble with defendant and had prepared to meet it long before the separation. He declared
Petitioner also produced documentary evidence for the purpose of showing that defendant, masquerading under the name of Ellen E. Loree, and Lowe had jointly committed a number of criminal acts relating to the Teaneck National Bank. Petitioner contends that these criminal acts bear stalwart witness to the fact that defendant and Lowe had carried on adulterous relations throughout the period during which they had manipulated the bank’s funds and records; that there could not have been a closer association of two criminals of opposite sex engaged in a common criminal purpose; that this common purpose drew defendant and Lowe so close that she no longer had any use for her husband; that her relationship with Lowe had ripened into something more than a mere acquaintance; that all of this conduct supports the charge that defendant’s Nevada decree was fraudulently procured. Othbr than the testimony of policeman Weidlig, there was not a particle of evidence offered in proof of any adulterous conduct between defendant and Lowe prior to their marriage.
Petitioner further charges that while there is no direct proof that defendant and Lowe left this state together, the closeness in point of time of their departure, defendant’s promptness in setting up her alleged residence in Nevada, the procurement by Lowe of a Mexican decree of divorce from his wife after his disappearance from this state, the marriage of defendant and Lowe within so brief a period of time after the entry of her Nevada decree, and in furtherance of their insidious plan, the adoption of the child of this petitioner and defendant, is cumulative proof of her having fraudulently invoked the jurisdiction of the Nevada court. The evidence discloses that defendant left her home at Kidgefield Park on January 19th. 1933. Lowe, too, disappeared from the Tea-neck National Bank on that day and never returned there.
At the conclusion of petitioner’s case, defendant moved to dismiss the petition for want of sufficient evidence to support a decree, reserving the right, however, in the event of such motion not prevailing, to interpose her defense. This is not the proper practice in equity procedure because a motion of that type is, in effect, in the nature of a motion to nonsuit. There is not, in this respect, any analogy between equity and law procedure; nonsuits are applicable only to causes arising before common law tribunals and cannot be resorted to in actions of an equitable nature.. The reason for this is obvious. In actions brought on for hearing in courts of law, the presiding judge rules upon questions of law and the jury determines the factual issues. The object of a nonsuit in such proceedings is to withdraw the case from the jury when the issue has become narrowed to a question of law to be decided by the presiding judge. It is because of this dual nature, i. e., determination of matters of fact by the jury, and rules of law by the judge, in actions at law, that gives rise to the prac
For a further reason, a motion to dismiss, with reservation, would undoubtedly tend to prolong litigation; it might not have the effect of a final judgment as to the rights of the parties because the same question may arise in future when the petitioner is able to supply the testimony which was lacking. In a court of equity the defendant must elect to offer matters in defense or rest his case. If he is willing to risk his case upon petitioner’s proof, or rather, the failure of petitioner to prove his case, such conclusion is tantamount to a submission of' the case on the merits to the chancellor. In Sawyer v. Platt (New Jersey Chancery), 77 Atl. Rep. 1043, Vice-Chancellor Learning stated what appears to be the single reported rule on this subject in this state, viz., “it is not the practice of this court to entertain, at the conclusion of complainant’s evidence, a motion on the part of defendant to dismiss the bill for want of sufficient evidence to support a decree. A defendant is here privileged to rest his cause upon the evidence offered by complainant, or to introduce evidence in his own behalf, at his election.” While, a.s stated in the foregoing case, unusual circumstances were involved, the learned vice-chancellor applied, nevertheless, the rule as therein stated and which rule appears to be in complete harmony with the reported expressions of tribunals in sister states possessing equity powers. This defendant was, therefore, precluded from interposing a motion to dismiss with reservation; having moved to dismiss the petition she elected to rest her case.
Petitioner contends that because defendant offered no testimony in contradiction of his evidence, she either feared the
As to defendant’s alleged fraud: In Fairchild v. Fairchild, supra, the court of errors and appeals held it to be the settled rule in this state that the only grounds upon which the judgment of a court of general jurisdiction can be disregarded in another state are, first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and,
As to petitioner’s contention that defendant was precluded from obtaining a domicile in Nevada because she was a fugitive from justice: The federal constitution, article 4, section 2, provides: “A person charged in any state with treason, felony, or other crime, vjho shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he has fled, be delivered up, to be removed to the state having jurisdiction of the crime.” (Italics mine.) From the numerous authorities I have examined, there appears to be marked distinction between one who is a “fugitive from justice” and one “who shall flee from justice.” It was held in Day v. Otis, 8 Allen (Mass.) 477, that the word “charged,” as used in the federal constitution, implies that an offense has been alleged against a person “according to the forms of law.” In Pierce v. Creecy, 210 U. S. 387; 28 S. Ct. 714; 5 L. Ed. 113, it is stated that the word “charged” is to be construed in its broad signification
Defendant’s Nevada decree was entered May 24th, 1933. She was not indicted until January 10th, 1934. Although she removed from this state to Nevada on January 19th, 1933, she did not, however, become a “fugitive from justice” until nearly a year later. Our statute of limitations (2 Comp. Stat. 1910 p. 1870 § 152), provides that no person shall be prosecuted for certain crimes unless an indictment shall be found within two years from the time of committing the offense, but “that nothing herein contained shall extend to any person fleeing from justice.” The phrase “fleeing from justice” applies to a person who, having committed a crime, has removed from or secreted himself within the jurisdiction wherein the offense was committed with intent to avoid detection or prosecution, the statute ceasing to run in the meanwhile.
As to the restraining orders: As stated, supra, neither the ad interim, nor the permanent restraining order was served upon defendant. Service of both, however, was made upon her attorneys by registered mail. In Van Doren v. Robinson, 16 N. J. Eq. 256, it was held that constructive notice is knowledge imputed on presumption, too strong to be rebutted, that the knowledge must have been communicated. Even though service was made outside this state, if the matrimonial domicile of defendant was here the restraining orders were obligatory on her. Kempson v. Kempson, 63 N. J. Eq. 783; 52 Atl. Rep. 360. If, however, this court had no jurisdiction over defendant it is obvious that she was not bound to obey them.
As to defendant’s domicile in Nevada: In re Geiser’s Will, 82 N. J. Eq. 311; 87 Atl. Rep. 628, it was stated that the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent; that such consent may be either actual or constructive and may be manifested by acquiescence, by abandonment, or by such conduct inimical to cohabitation as would secure the wife a decree of divorce, a vinculo or a mensa ei thoro. And again, in Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643, it was stated that where such residence or domicile is once established it is presumed to continue unless there be proof of the acquisition of a new domicile or residence, and that to establish the latter more than a mere change of abode is requisite; the change of abode must be animus manendi. Also in Tracy v. Tracy, 62 N. J. Eq. 807; 48 Atl. Rep. 533,
That defendant separated herself from petitioner for justifiable cause while both were resident here, and that petitioner abandoned defendant is amply supported by petitioner’s testimony.
The rule laid down in Stephens v. Evans, 105 N. J. Eq. 203; 147 Atl. Rep. 447, is to the effect that there must be proof that' defendant went to Nevada in order to obtain a divorce; the language of the statute (2 Comp. Stat. 1910 p. 2041 § 33) is clear that to void such decree the “intent” to evade our statute must appear.
It is further urged that the removal of the child of the parties from this state by defendant without petitioner’s consent was unlawful and accentuates her fraud; that the adoption of the boy in Nevada by defendant and Lowe, and having his name changed to Charles Perry Lowe, demonstrated defendant’s contempt for this court and further contributed to the atmosphere of illegality and fraud which prevaded the whole situation. While it is true that 2 Comp. Stat. 1910 p. 2809 § 19, prohibits the doing of what defendant did (taking the child out of this state) particularly because this court had jurisdiction over the minor by reason, at least, 'of the pending separate maintenance proceedings, nevertheless, and without thought of excusing or absolving her in the premises, I cannot conceive how she could have more emphatically demonstrated her conclusion to relinquish her domicile here; she took with her her child who was, undoubtedly, her most cherished possession and whose father had evinced no desire to visit for months before her departure; she left behind nothing that would indicate her intention to return to this state. She brought about the adoption of her child and his change of name in Nevada. It is sensible to assume that this was an added reason why she proposed to continue her bona fide domicile in that state; she undoubtedly realized that in the event of her returning with the child to this jurisdiction,
No clear and convincing proof was offered showing that defendant’s departure from this jurisdiction was “in order” to obtain a divorce, or was with “intent” to evade our divorce statute, or was other than voluntary or was prompted by her lack of intention to acquire a domicile in Nevada, or that she was not physically and continuously within the jurisdiction of Nevada during the period required for domicile by the statutes of that state, or that her intention to remain there was not made in good faith. For a further reason, to grant petitioner the relief he asks would involve a decree against the validity of the divorce, and of the subsequent marriage, and consequently the legitimacy of the child of the marriage, and that, too, in a suit to which the child is not a party.
Defendant’s Nevada decree was not fraudulently obtained. Solicitor for defendant will accordingly submit an order dismissing petitioner’s petition.