103 N.J. Eq. 26 | N.J. Ct. of Ch. | 1928
The bill under criticism recites, in effect, that the parties were married and lived in the city of New York for a period of more than twenty years and until the defendant left that jurisdiction, as hereinafter recited. On May 21st, 1926, the complainant secured a judgment in the New York supreme court divorcing the parties from bed and board and allowing to the complainant, for the support of herself and her children, the sum of $55 per week. Such payments were made by the defendant until September 19th, 1927, whereupon they ceased, and shortly thereafter the defendant left the jurisdiction of the New York court. On October 28th, 1927, complainant was served with a complaint in a proceeding instituted by the defendant in one of the courts of the republic of Mexico. Thereafter, at a date not specified, the defendant obtained a judgment or decree of the said Mexican court divorcing him from the complainant. Almost immediately thereafter (for he had been discovered and the bill filed on or about February 18th, 1928), the defendant left Mexico, went to Newark, New Jersey, and there re-established himself in the practice of his profession and began to live with another woman.
The bill recites, as all statements now being made are recited therein, that the defendant represented to the court of Mexico that the complainant was at that time a resident of New York and he (the defendant herein) a resident of a city in Mexico, "although, in fact, he was a citizen of the United States of America and then resident in the city, county and State of New York."
The defendant is a licensed physician who has practiced his profession for twenty-three years, and is said to have earned therefrom an annual income of between $40,000 and $50,000 before the separation of the parties. It is charged that he expelled his wife from his residence on February 7th, 1925, and has ever since refused to live with her or support her and the children.
Certain allegations are then made of conduct and statements by the defendant intended as a foundation for a motion to secure a writ of ne exeat and certain other allegations reflecting *28 upon the character of the defendant as a husband and father, and the usual protestation of poverty on the part of the defendant.
The prayers are seven in number — first, for answer;second, for alimony and maintenance; third, for security for the payment thereof; fourth, for a writ of ne exeat; fifth, for the arrears of alimony under the New York judgment; sixth, for counsel fees, and seventh, for process.
The notice has a double aspect, and asks (a) that the bill be dismissed because it discloses upon its face the Mexican decree without alleging any infirmity therein, and (b) because there is no prayer for a decree declaring the Mexican decree void.
It would appear that counsel for the proponent misconceives the manner in which an attack upon an existing instrument should be pleaded. It certainly requires neither argument nor the citation of authorities to prove that relief is to be afforded from the facts properly pleaded in a bill such as this, and not upon conclusions of the pleader. As I read counsel's brief, his quarrel with the bill is because it contains no such general statement as, for example, that it (the Mexican decree) is fraudulent and void and of no effect. Clearly, any such statement in the bill would have been the plainest kind of a conclusion, and the very conclusion which the complainant seeks to have the court draw from the facts of which a synopsis has been given above. The defendant advances the language of the chancellor inFeickert v. Feickert,
This is just what the bill of complaint has accomplished. It has set forth certain facts connected with the defendant and his obtaining the Mexican decree, and asks the court to deduce from these the judgment that the decree was procured by fraud. To have added the bald statement that it was so procured would not only have been without any virtue, but would have been repugnant to one of the canons of good pleading.
It remains to be seen whether or not the facts pleaded could support proofs from which a judgment could logically be drawn that the decree in question was so tainted as to be of no force and effect. It seems to me that the facts are quite as strong as those upon which the court of errors and appeals impeached the decree considered in Magowan v. Magowan,
The defendant must fail upon the other ground of his motion. The complainant could not have properly prayed for a decree declaring the judgment of the Mexican court to be void. Floyd
v. Floyd,
Finally, there is no question of comity, because it is universally the law that effect will not be given to any judgment of a foreign state that is infected by fraud.
An attack is also made in the brief filed on behalf of the defendant upon the prayer for arrears of alimony under the New York judgment, because, it is argued, being divorced, the complainant has a complete and adequate remedy at law. *31 Bennett v. Bennett,
Finally, it is argued that this defendant had a perfect legal right to change his domicile and with it his residence, and no one will deny that this is so. My difficulty is to convince myself that he had any such intention at the time he entered Mexico, so far as making any portion of that country his fixed and legal residence. Surely one may take notice of the increased number of unhappy spouses who are constantly gathering in certain jurisdictions where marriages are dissolved upon grounds not recognized in the respective jurisdictions in which they have previously spent their lives. It is equally notorious that immediately upon receipt of the decrees they seek, they almost universally find that their new surroundings have lost all attraction and thereupon return to places that have previously been their homes, except in a case like the present one where there exists an awkward judgment, or a threat of one, which cannot be overcome. I know of no case which appears clearer than the one made out by the facts in the bill, if they are true.
The very authorities upon which the defendant relies support the statement just made. For example, in 19 C.J. 370 § 836, the concluding clause on this subject is — "he is free to change at his pleasure, provided the change is a bona fide one, and a divorce so acquired will be recognized in the state of his former domicile." In Magowan v. Magowan, supra, the court of errors and appeals stressed the necessity of the element of the animusmanendi in the establishment of a new residence, citing Harral
v. Harral,
The motion should be denied. Inasmuch as only the motion to strike has been argued, and the argument on the merits of the order to show cause has been withheld, the latter may be brought on on any motion day.