13 N.J. Misc. 439 | New York Court of Chancery | 1934
This is a suit for divorce commenced in March, 1934. The husband charges in his petition that he is a resident of the State of Yew York, that he was married to the defendant in
It appears that, after the marriage, the parties resided in this state until the commencement of the alleged desertion. In April, 1926, the husband prepared a new home for his wife at Greenport in the State of Hew York, where he then went to live and has ever since resided. The wife, without legal justification, then refused to accompany him, and has ever since resisted his diligent efforts to resume marital relations. It seems that she preferred to remain in the locality in this state in which she had lived before marriage, where they had also cohabited after the marriage until the husband changed his domicile to Hew York to be nearby his new place of employment.
At the time the continuance was granted referred to above, I intimated to counsel my doubt that this conrt had jurisdiction over the subject-matter of this suit. Petitioner’s case proceeds upon the theory that the residential qualifications for jurisdiction prescribed by our statute are fully met, by the fact that the defendant has continued to be a resident of this state ever since she deserted her husband in April, 1926. Inasmuch as my judgment on that proposition is dispositive of the case, it will be needless to proceed further with the hearing. It may be assumed that the wife’s alleged residence, in fact, can be fully established.
In legal contemplation upon marriage, the wife’s domicile merges with and becomes that of her husband. It continues thereafter within her husband’s properly exercised control, and it is unchangeable by her except by his acquiescence or consent, or for such misconduct on his part inimical to the union, as justifies her in selecting another. Thompson v. Thompson, 89 N. J. Eq. 70; 103 Atl. Rep. 856; Rinaldi v. Rinaldi, 94 N. J. Eq. 14; 118 Atl. Rep. 685; approved in
When the husband in 1926 removed from this state to New York and his wife, without warrant in law, refused to accompany him and cohabit there, her domicile, nevertheless, thereafter became that of her husband and continued to be such. And that is so despite the fact that she may have continued to reside in this state, lie changed the matrimonial domicile lawfully to New York and she simply refused physically to accompany him. His act did not constitute misconduct on his part, nor justification for his wife then to select a separate residence in the sense of domicile. It cannot be said that she has maintained a separate domicile in this state with her husband’s acquiescence or consent, for that would not only bo contrary to the fact but dispositive of one of the essential elements of the alleged cause of action—obstinacy of the desertion. Such is the reasoning in Atherton v. Atherton, 181 U. S. 155.
It is urged that, though the complaining husband is a nonresident, this court has jurisdiction under section 6, subdivision (a) of our Divorce act of 1907 for the reason that personal service of process was made upon the guilty party within this state, and the latter has continued to reside here ever since the parties separated. That section of the statute does provide for jurisdiction based upon the residence of either party in this state where such service is made. But the quality of the proscribed residence must always be determined in light of the law defining residence of married persons, and the limitations and privileges pertaining thereto. To hold otherwise would give this court authority to alter the marital status in any case where personal service of process was made within this jurisdiction and in which one of the parties had resided here with bona fides the prescribed length of time regardless of whether this state was the situs of the marital res or status by virtue of such residence. That cannot be so. A suit for divorce necessarily involves the marital status. It is not strictly a personal action. Biddle on New Jersey Divorce Law {2d ed.) 32. In Thompson v. Thompson, supra, Vice-Chancellor Baekes dealt with the New
If I had found the law in this state permitted a married woman at will to carry with her a part of the marital res when, independently from her husband, she determined upon establishing a residence separate from his, undoubtedly the husband here would be entitled to' relief. It would then appear that, after the separation, the wife’s residence continued in this state in all respects satisfied the jurisdictional requirements of paragraph 6, clause (a) of the Divorce act of 1907. There certainly seems to be no good reasoii that the law in such case should not be such in light of the modern policy tending to constantly broaden the rights of married women. But that must be the subject of legislative enactment, not judicial determination. It may be noted that P. L. 1927 ch. 168; Cum. Supp. Comp. Stat. 1980 § 124-19,
I do not perceive that there are any distinctions of facts in the case sub judice from those in Pennello v. Pennello, supra, and Rinaldi v. Rinaldi, supra, which would warrant not applying here the jurisdictional principle decided in those cases. It is true that they were suits for nullity of marriage. The quality of residence required for jurisdiction in nullity suits cannot be differentiated from that required in suits for divorce under our statute. The statute simply prescribes a different period or term of residence. The controlling feature of either of these types of suits in respect to the quality of residence prescribed is that they each alter the marital status.
Nor is there any distinction to be found in the fact that in each of the last cited cases the petitioner had come into this state and acquired a residence, and that the defendant was a non-resident who had remained at the matrimonial domicile, and was brought into this court as an absent defendant pursuant to the provisions of our Divorce act. It was decided in those cases, as here, that the petitioner-wife could not acquire a separate matrimonial domicile within this state for the purpose of giving jurisdiction under our statute, except with the acquiesence or consent of the husband, or because of such misconduct on his part as justified her in maintaining such a separate residence. The same factors controlling the ability of a wife to acquire a separate matrimonial domicile from her husband are present in this case;, and it is equally evident in this case that she has not had such a separate domicile within this state at any time since the separation by virtue of which this court would have any jurisdiction to decree relief for the petitioner upon the alleged desertion. Petition will be dismissed.