89 N.J. Eq. 70 | New York Court of Chancery | 1918
The parties were married at Peekskill, Yew York, April 19th, 1913, and went to Montreal to live. In February, 1914, they moved to Trenton, where they set np housekeeping, and where the petitioner engaged in business. Tn May the defendant-visited her former home in Poughkeepsie to consult her family physician regarding her pregnancy. It was understood that the visit was to be of short duration, but by mutual understanding it was extended from time to time and finally it was arranged that she should stay until after the baby was born. Tn the meanwhile, the petitioner spent week-ends with her and was con-' stantly in communication by mail and telephone. After she recovered from childbirth the defendant showed no inclination to rejoin her husband, although frequently importuned to do so,
In the answer to the petition, after admitting the marriage, it is alleged that before the commencement of this suit the defendant brought her action as above stated; that the court had jurisdiction over the subject-matter, and that the defendant was then, and had been for upwards of six months next preceding, a bona fifte resident of the State of New York; and that service was made and that judgment was entered as hereinbefore related.
1. The judgment is manifestly not entitled to recognition under the full faith and credit clause of the federal constitution, because the foreign court had not jurisdiction over both of the parties, nor over the matrimonial domicile. Service of process upon the defendant within the confines of the state is an essential requisite (Haddock v. Haddock, 201 U. S. 562) unless the matrimonial domicile is in that state, when jurisdiction may be had by substituted service. Atherton v. Atherton, 181 U. S. 155: Thompson v. Thompson, 226 U. S. 551. The rule is recognized in this state in Doughty v. Doughty, 28 N. J. Eq. 581; Wallace v. Wallace, 62 N. J. Eq. 509; reversed on facts, 65 N. J. Eq. 359; Watkinson v. Watkinson, 67 N. J. Eq. 142; reversed on facts, 68 N. J. Eq. 632. In the Atherton Case the husband sued his wife for divorce on the ground of desertion in the jurisdiction of the matrimonial domicile, and judgment was entered upon constructive service. The supreme court held the clause to be binding and precluded the wife from asserting that she left her husband on account of his cruel treatment and from setting up that she was enabled to acquire, and had in fact acquired, a separate domicile. It is still open to debate whether the rule would apply if the wife brought the action in the matrimonial domicile, in view of the husband’s ability to establish a domicile elsewhere, at will, although it is strongly intimated in the opinion that it would. In the case of Harding v. Harding, 198 U. S. 317, cited by the defendant in support of the proposition that a divorce a mensa et thoro is an absolute bar to an action for divorce a vinculo on the ground of desertion, the supreme court held the clause to be operative because the court whose judgment was interposed as a bar had jurisdiction over the subject-matter and the parties. So much as to the conclusiveness of the judgment strictly under the constitution.
2. The judgment is not entitled to enforcement on the ground ' of interstate comity. Before the present Divorce act was passed,
“Full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections five, six and seven of this act. Nothing herein contained shall be construed to limit the power of any court to give such effect to a decree of annulment or divorce by a court of a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this state shall go into another state, territory or country, in order to obtain, a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or-effect in this state.”
Section 7, which is the pertinent one, provides that jurisdiction for the purpose of divorce, whether absolute or from bed and board, may be acquired by substituted service:
“(a) When at the time the cause of action arose, the petitioner was a bona fide resident of this state, and has continued so to be down to the time of the commencement of the action, except that no action for absolute divorce shall be commenced for any cause other than adultery, unless the petitioner has- been for the two years next preceding the commencement of the action a bona fide resident of this state.”
That a foreign court assumes jurisdiction over the subject-matter within its state, under the provision of its laws, and that its adjudication is there valid and effectual, are matters wholly irrelevant to the test fixed by our statute, which necessarily limits the inquiry to the ascertainment of whether the foreign jurisdiction was obtained in the manner and in substantial conformity with the requirements imposed by the legislature upon this court in acquiring jurisdiction in such cases, of which the principal and governing one is, except in causes for adultery, that the petitioner “has been for the two years next preceding the commencement of the action a bona fide resident of this state.” The defendant was, admittedly, not a resident of New York for that period, and, consequently, the judgment is impotent here. It is possible to suppose a case where the rigidity of the statutory rule of comity would be relaxed, but this is not one of them.
Furthermore, the statute bars the decree from recognition because the divorce from bed and hoard was granted for a cause which occurred while the parties resided in this state, and the defendant went into New York in order to obtain it. If the charge of cruel and inhuman treatment had been well founded, full redress would have been available to the defendant in this court, but instead of seeking relief here, she forthwith, after separating from her husband, instituted her action in New York. That her program at the time of the separation was to be rid of him and to bring an action to that end, if necessary, there can be little doubt. While it is true that she returned to the place where she had been previously harbored for seven months, it is a fair inference that she was bent upon a divorce and that her return to' New York was incidental to its accomplishment. Her conduct was in fraud of our law. The case is within the statute. The term “in order to obtain a divorce” is not quite so limited to a case of actual intent and purpose as if the phrase had been “for the purpose of obtaining a divorce.” Lyon v. Lyon, 68 Mass. (2 Gray) 367. It is within the power of the state to forbid the enforcement of such a decree. Andrews v. Andrews, 188 U. S. 14.
3. The decree is invalid, because the court did not have jurisdiction over the subject-matter upon which it pronounced judgment. In passing, it may be said that the judgment was not obtained by any actual fraud practiced upon the court, because all the facts attending her domicile in 'this state and her departure therefrom and her then abode were fully and truthfully set forth by the defendant in her complaint, so that the single question is whether the court rightfully assumed jurisdiction. It is a fundamental principle of general jurisprudence that a divorce can be granted only in the state wherein the status on which it operates has a situs. And it is also entirely settled that the jurisdiction of the adjudging court, whether over the parties or the subject-matter, may be inquired into and determined by the court in which the judgment is sought to be enforced. Fairchild
The inquiry then resolves itself into whether the defendant acquired a new domicile in New York, by which she carried the res, or a part of it, with her. The husband’s domicile undeniably was in this state, which, in legal contemplation, was also that of the wife, and was unchangeable by her, except with his acquiescence or consent, or for such misconduct on his part, inimical to the union, as justified her in selecting another. Tracy v. Tracy, 62 N. J. Eq. 807; In re Geiser Will, 82 N. J. Eq. 311; Cheever v. Wilson, 9 Wall. 108; Hunt v. Hunt, 72 N. Y. 217. Whether there was such justification is purely a question of fact to be passed upon by the trial court, in which the judgment is offered, in determining whether a separate domicile had been acquired, and in this determination the foreign adjudication that the petitioner had been guilty of cruel and inhuman treatment and that the defendant was justified in the separation and that she acquired a domicile within the state, and that the court had jurisdiction over the subject-matter, has no evidential force whatever. Such, in effect, is the ruling of the supreme court of the United States, in the cases hereinbefore cited; and it was so declared by this court in the Watkinson Case. Chief-Justice Marshall, speaking for the supreme court, in Rose v. Himely, 4