94 N.J. Eq. 14 | New York Court of Chancery | 1922
Onr statute conferring jurisdiction of causes for the purpose of annulment of marriage provides that jurisdiction may be acquired (1) by personal service of process upon the defendant within this state, when either party is a bona fide resident here at the time of the commencement of the action, or (2) when the defendant cannot be served personally with process within this state, and when at the time of the commencement of the action the petitioner is a bona fide resident here, jurisdiction may be acquired by publication to be followed where practicable by service upon, or notice to, the defendant without this state, &c. P. L. 1907 p. 474 § 5 subdivs. 1, 2.
On examining this case on the master’s report and depositions annexed, I filed a memorandum in which I recited that the parties were married February 23d, 1917, at Syracuse, New York, when the petitioner was twelve years, eight months and five days old; that they have not cohabited since March 17th, 1917, when, on the latter date, petitioner left the
In pursuance of the leave thus given counsel for petitioner appeared before me and argued the reserved question, citing Avakian v. Avakian, 69 N. J. Eq. 89, as authority to the effect that the petitioner is domiciled in New Jersey and has the reqirisite residential status to maintain this suit. In that case Vice-Chancellor Pitney observed (at p. 99) : “The notion that the domicile of the wife follows that of her husband has little or no practical application to suits between husband and wife, since if the wife was justified in leaving her husband she thereby became entitled to adopt a new domicile, and if she was not justified she will fail in her suit on the merits.”
Avakian v. Avakian, supra, is also an authority that' this court has power to annul a marriage solemnized in another jurisdiction and when the cause for action arose in a foreign state.
In order, apparently, to lay a foundation for the obtaining of a Iona fide residence in this state by the petitioner upon her actual desertion of her husband, counsel has filed an affidavit of the petitioner, in which she says that prior to her
This affidavit is intended as a showing that the wife was justified in leaving' her husband. That may be so. In English v. English, 27 N. J. Eq. 579, upon bill for divorce a mensa et thoro, on the ground of extreme cruelty, consisting mainly in gross abuse by the defendant of his marital rights in insisting on having intercourse with his wife against her entreaties and expression of apprehension that it would be fatal to her, she being kept awake many nights by the pain she suffered during and after intercourse, Chancellor Eunyon decreed a divorce from bed and board forever, ante p. 74. The corirt of errors and appeals in reversing the decree said that the action of that court was not based upon any approval of the acts of the husband of which his wife complained, nor upon his requests for her return, nor upon any formal security that he could offer for his future good behavior, and held that a divorce a mensa et thoro will be granted where there is gross abuse of marital rights.
Vice-Chancellor Pitney in his assertion in Avakian v. Avakian that a wife could acquire a domicile independent of that of her husband, if she is justified in leaving him, could not have meant she could leave him for any cause sufficient
In re Geiser’s Will, 82 N. J. Eq. 311, I held, as ordinary (at p. 313), that upon marriage the legal domicile of the wdfe merges into that of the husband as a legal sequence of the nuptial contract, and the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent. That 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 to the wife a decree of divorce a vinculo or a mensa et thoro.
In Suydam v. Suydam, 79 N. J. Eq. 144, I held, when vice-chancellor, that if a husband be guilty of conduct amounting to a matrimonial offence that would constitute ground for divorce, his wife is justified in leaving him and the desertion thereby becomes his.
In Rogers v. Rogers, 81 N. J. Eq. 479, the court of errors and appeals held that desertion is justified only when the deserting party has been so offended against as to authorize at his or her instance a decree of divorce or judicial separation
In Thompson v. Thompson, 89 N. J. Eq. 70 (at p. 77), Vice-Chancellor Baches held that in legal contemplation the husband’s domicile is that of the wife, and unchangeable by her, except with his acquiescence or consent or for misconduct on his part, inimical to the union, as justified her in selecting another, citing, among other authorities, In re Geiser’s Will, supra, and Tracy v. Tracy, 62 N. J. Eq. 807. And the vice-chancellor observed that whether there was justification for a wife’s leaving is purely a question of fact to be passed upon by the trial court in determining whether a separate domicile has been acquired. In the 'latter case (Tracy v. Tracy) the court of errors and appeals held (at p. 810) that a feme covert’s residence follows that of her husband,- but terminates
From the above authorities it clearly appears, I think, that a cause sufficient to justify a wife in leaving the matrimonial domicile of her husband and herself and acquiring an independent domicile of her own, is such cause only as would entitle her to a decree of divorce or a judicial separation from him under the statute.
In Wallace v. Wallace, 65 N. J. Eq. 359, Judge Yroom, speaking for the court of errors and appeals (at p. 364), said: “I concur entirely in the principle laid down by the special master in this case that a person may legitimately move to another state in order to avail himself of the laws of that state, and this includes, necessarily, the right to remove into the jurisdiction of this state for the purpose of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and of the animus manendi; in other words, the factum of residence and the animus manendi proves the domicile. Magowan v. Magowan, 12 Dick. Ch. Rep. 324; Harral v. Harral, 12 Stew. Eq. 285.” This, of course, presupposes the right to acquire a new domicile.
The doctrine of Wallace v. Wallace, without more, would make a perfect case of domicile for the petitioner before me, but, it must be remembered, that decisions are rendered with reference to the facts of the particular cases under consideration; and in this Wallace Case the petitioner was deserted by her husband. That disrupted the matrimonial domicile, and she had the right, under the cases, to acquire a new one for herself. And in the Wallace Case the opinion concludes: “The proofs in this case, showing that the residence of the complainant was acquired with the animus manendi, and
In the instant case there is sufficient corroboration of the petitioner’s actual residence in New Jersey for the last five years, but there is no declaration by her that she has had the intention of making, and continuing to make, it her permanent home; and, for aught we know, she may intend the very reverse.
In Firth v. Firth, 50 N. J. Eq. 137, it was held by Vice-Chancellor Van Fleet: “The actual intention of the person whose domicile in dispute is in most cases a fact of great importance, but the best and most trustworthy evidence of it is found, as a general rule, in his acts rather than in his declarations.” See, also, Stout v. Leonard, 37 N. J. Law 492, 496. And no length of residence without intention of remaining will constitute domicile. Ibid. 495.
From the foregoing it appears that when a change of residence is effected the question as to whether the newly-acquired one is to be the party’s legal domicile is a question which depends upon both fact and intention. The best evidence of intention is to be ascertained from the party’s declarations, which are always available in a suit for divorce or nullity because the parties are alive.
The case at bar differs from that of Blumenthal v. Tannenholz, 31 N. J. Eq. 194, where it was held that the domicile of a legitimate unemancipated minor is, if his father be living, the domicile of the latter; that an infant, whose parents resided in Canada, who filed a bill to annul her marriage on the ground of fraud, her husband being domiciled elsewhere, was incapable of changing her own domicile, and that consequently the court had no jurisdiction. But Vice-Chancellor Pitney in Avakian v. Avakian, supra (at p. 98), said that that case was distinguished from Blumenthal v. Tannenholz. in that in the Arabian Case the petitioner was placed bjr her father, who lived in Armenia, in the hands of a man to be
In Hess v. Kimble, 79 N. J. Eq. 454, Vice-Chancellor Learning held, inter alia, that the term “residence,” as used in our Divorce and Annulment act of 1907, includes not only the factum of residence but also the animus manendi, the residence required by the statute being equivalent to domicile ; that the domicile of a legitimate unemancipated minor, whose will cannot concur with the fact of residence is, if his father be living, the domicile of the father; that a minor cannot change his domicile of his own will; and that the burden of proof to establish a 'change of domicile on the part of a minor is on him. In Coddington v. Coddington, 20 N. J. Eq. 263, Chancellor Zabriskie held that the residence required by the statute concerning divorces to give the court jurisdiction, means fixed domicile or permanent home.
The defendant was not served with process within this state, but was brought in by publication and mailing of certified copies of the order of publication and petition for annulment. He was therefore notified that the petitioner alleged that she was a bona fide resident of this state at the time of
The court, of its own motion and in the interest of justice, will sometimes permit the taking of further testimony to legally establish what has been insufficiently proved. Kirschbaum v. Kirschbaum, 92 N. J. Eq. 7, 12.
The petitioner may have an order re-referring the cause to the special master, with leave to take further testimony to prove residence (legal domicile) in Eew Jersey in accordance with the tests laid down in this opinion, if she so desires, and moves therefor within thirty days; otherwise her petition will be dismissed.