| N.J. | Mar 2, 1903
The report of the special master sets forth in a clear and concise manner all the essential features' of the testimony taken in this cause and necessary to its determination. Based upon this testimony, the finding' was that the complainant’s act in moving into this state for the purpose of getting a divorce did not show either illegality or impropriety of motive, and that at the time of exhibiting her bill she had an actual residence in this state to support a divorce, shown by her intention to reside here permanently, and proven, not only by her own testimony, but corroborated beyond a reasonable doubt.
A careful examination of the testimony has satisfied me that the conclusions reached by the master are correct.
Admittedly, the only question in the case is that of the actual residence or domicile of the complainant, and whether this residence was such as entitled her to maintain this suit for divorce. There is no dispute as to the fact that the residence of the defendant was in New York, and that no service of process was had upon him within the jurisdiction of New Jersey, he having been brought into court by service of notice as a non-resident defendant in New York, in accordance with the provisions of our statute and the practice of the court of chancery. In dismissing the complainant’s bill, the court below held that when a complainant in a divorce suit has been deserted in another state and has moved into New Jersey for the purpose of securing a divorce in such' state, she acquired no domicile such as to give to the courts of this state jurisdiction, where no.service of process is had on the defendant in New Jersey. ’ ' .
It-is not deemed essential, for the determination of this case, to enter upon either an extended consideration of the extraterritorial service of notice or of the power to grant a divorce based upon an extra-territorial service. 'That such decree may be made, and that it will have extra-territorial force, is settled in this court by the case of Felt v. Felt, 14 Dick. Ch. Rep. 606,
In order, however, to render the divorce valid, either in the state in which it is granted or in another state, there must, unless the defendant appeared in the suit, have been such notice to him as the law of the first state required. Atherton v. Atherton, supra; Cheeley v. Clayton, 110 U.S. 701" court="SCOTUS" date_filed="1884-03-10" href="https://app.midpage.ai/document/cheely-v-clayton-91069?utm_source=webapp" opinion_id="91069">110 U. S. 701.
The statute of this state, in defining the causes for which divorces may be decreed by our courts, provides
“or when the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint and the complainant or defendant shall have been a resident of this state for the term of two years, during which such desertion shall have continued.”
In the case of Tracy v. Tracy, in this court (17 Dick Ch. Rep. 810), the definition of residence is adopted as the place where a person’s habitation is fixed, without any intention of removing therefrom, and it was well said by the special master, in his finding in this case, that mere residence, without an animus manendi, will not support a divorce suit, and that the animus manendi must be proved as fully as other material facts are required to be proved.
But it was insisted by the learned vice-chancellor that in addition to the requirements of the statute as to residence, as above defined,' that the residence cannot be acquired with the desire or intention to procure a divorce. On page 519 (Wallace v. Wallace, supra), he says: “It has been my rule, and I believe that of the other members of the court, not to grant a decree for divorce • for desertion based upon a service out of the jurisdiction and a domicile not matrimonial, unless suc'li domicile has been acquired under circumstances showing suffi
The practical effect of this doctrine is to prevent a citizen who removes into this state from another, even though such removal be made bona 'fide with animus manendi, from acquiring a residence here sufficient to sustain an action for divorce, unless some reason for acquiring such residence be shown other than the desire to procure a divorce; its legal effect is to substitute for the public policy established by the legislature a judicial policy of contrary import. 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.
It is true that Chancellor Green, in the case of Brown v. Brown, 1 McCart. 78, refused a divorce because “the actual residence in this state was adopted, under circumstances which warrant the conclusion that the change of residence was made for the purpose of - obtaining a divorce,” and yet the decree in that case was unanimously reversed in this court. The opinion of Chief-Justice Whelpley, in this court, was not filed nor reported, yet there appears no warrant for assuming that such reversal “may have been based upon a different view of the facts.” The opinion of Chancellor Zabriskie, in Coddington v. Coddington, 5 C. E. Gr. 263, states the grounds upon which Brown v. Brown was reversed in this court. He says (at p. 265) : “And it was well understood that the last case (Brown v. Brown) was reversed in the court of appeals on the ground that the chancellor held that, notwithstanding the act of 1857, a residence of five years during the desertion was still required;
This extract from the opinion in Coddington v. Coddington, it seems to me, leaves no doubt whatever as to the grounds of the reversal in this court of the decree in Brown v. Brown.
In the case of Tracy v. Tracy, 17 Dick. Ch. 807, this court held that “the fact that a person comes into a state for a specified purpose does not necessarily prevent him from procuring a residence, if at the time of coming he has no definite idea of removing from the state when that purpose is accomplished, or at some definite period.”
The case of McGean v. McGean, 18 Dick. Ch. Rep. 285, in this court, was not decided upon the question of the Iona fides of the residence of the petitioner in this state. The affirmance of the decree below was expressly put upon the ground that the petitioner had failed to establish the desertion of the defendant for the statutory period by that quantum of proof which the law requires.
I do not understand that the decision in Sweeney v. Sweeney, 17 Dick. Ch. Rep. 357, referred to in the opinion below, comes to the same conclusion as that Reached by the vice-chancellor in this case. The chancellor, in that case, says, in referring to the proofs, that “they would perhaps justify the conclusion that the alleged residence was acquired with the main and predominant intent to enable the petitioner to seek relief for the desertion she complained of,” but he continues: “Without reference to • that phase of the case, I feel bound to say that petitioner \ad not, at the acquisition of the alleged residence, the ani'i, 'is manendi in New Jersey which is essential to give jurisdicti i to this court, or at least to leave the matter in such seriou.; doubt that jurisdiction ought not to be assumed therein.” It was upon this ground, and the fact that the proofs failed to show a willful or obstinate desertion, that the decree was not granted.
The decree below should be reversed.
For affirmance — None.