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Rigney v. Rigney

23 Abb. N. Cas. 212 Court N. Y. Supreme Court, General Term, First Department; English

Decision Majority — Bartlett, J. · Concurring — Van Brunt, P. J.

Contents

Majority

p. 212
RIGNEY v. RIGNEY.
N. Y. Supreme Court, General Term, First Department;
July, 1889.

Headnote

1. Jurisdiction ; alimony based upon supplemental bill, without new service.] An action[1] will lie in the courts of this State to enforce the decree awarding alimony of a court of another State which acquired jurisdiction of the action for divorce by voluntary appearance of the defendant, although such decree was based upon both the original and supplemental bill, and defendant was never personally served within the jurisdiction with a subpoena based upon the supplemental bill, as is required by the law and practice of that State, and never appeared thereunder; and notwithstanding the fact that the court rendering the decree has amended it so as to declare that the divorce was granted for the acts alleged in the supplemental hill.
2. The same.] If it be an irregularity in the decree to retain such direction for payment of alimony, after such amendment, the remedy is by motion in the court rendering the decree, but the decree itself is within the jurisdiction of such court and enforceable in other tribunals.
8. Pleading; admission as to foreign judgment.] It seems that an admission by a defendant in' an action brought to enforce payment of alimony awarded by a foreign judgment of divorce, that the court rendering it had jurisdiction to dissolve the marriage, will preclude such defendant from denying its jurisdiction to award incidental relief by way of alimony. [Per Van Brunt, P. J.]
p. 213
Appeal by the plaintiff from a judgment at Special Term, dismissing the complaint after a trial in an action brought to enforce a decree of the court of chancery of New Jersey, awarding the plaintiff alimony, counsel fee and costs in a suit for absolute divorce.
J. A. Shoudy (Wing, Shoudy da Putnam, attorneys) for appellant.
I. The position of the defendant in availing himself of the decree by remarrying, and claiming its invalidity so far as it awards alimony, is inequitable.
II. The decree of divorce cannot be held void in part and valid in part (Rev. N. J. 314, 315, 317 ; Forest v. Forest 9 Abb. Pr. 318 ).
III. The defendant is estopped from questioning the validity of the decree (Bigelow on Estoppel, 578 ; Sherman v. Mackeon, 38 N. Y. 266 , 275 ; Southard v. Perry, 21 Iowa, 488 ; Ruchman v. Alwood, 44 Ill. 183 ; Murphy v. Spalding, 46 N. Y. 556 ).
IV". The defendant cannot attack collaterally the validity and binding force of the decree (Christmas v. Russell, 5 Wall. 290 ; Bicknell v. Field, 8 Pai. 440 ; Kinnier v. Kinnier, 45 N. Y. 535 , 542; Taylor v. Brydeu, 8 Johns. 173 ; Dobson y. Pearce, 12 N. Y. 156 , 164).
Y. There was no defect of substance in the record of proceedings in the court of chancery (Lawrence v. Bolton, 3 Pai. 294 ; Eagar y. Price, 2 Id. 333 ; Shottenkirk v. Wheeler, 3 Johns Ch. 276 ; Dobson v. Pearce, 12 N. Y. 156 ).
YI. The decree in its present form having been enrolled
p. 214
and entered on defendant’s motion, he is estopped from questioning its provisions (Barber v. Barber, 21 How. U. S. 582).
Hamilton Wallis (Wilson & Wallis, attorneys) for respondent.
I. The amended decree as finally enrolled is the only decree upon which a recovery can be had in this action (Dinsmore v. Adams, 48 How. Pr. 274 ; afi’d 49 Id. 238).
II. The decree did not bind the defendant personally, and cannot be enforced against him personally (Pennoyer v. Neff, 95 U. S. 714 ; Schwinger v. Hickok, 53 N. Y. 280 ; Jardine v. Reichert, 10 Vroom (N. J. L) 168 ; Kinnier v. Kinnier, 45 N. Y. 535 , 541; Phelps v. Baker, 60 Barb. 107 , 111; Gibbs v. Queens Ins. Co., 63 N. Y. 114 ,124).
III. The defendant is not estopped or precluded from interposing this defense (Bishop on Marr. and Div. 5 ed §§ 156, 170, 199 c, 381 a).

The plaintiff sued the defendant in the court of chancery of the State of New Jersey for an absolute divorce, on the ground of adultery. The defendant appeared and answered the original bill of complaint, denying the acts of adultery with which he was charged therein. Subsequently, the plaintiff filed a supplemental bill, charging the defendant with other acts of adultery committed by him after the original bill was filed. The defendant was not served within the territorial jurisdiction of New Jersey with any procéss issued upon this supplemental bill. He was, however, in the State of New York, served with a copy of the said supplemental bill, and with an order made by the chancellor of New Jersey requiring him to appear and plead thereto within a specified time, and providing that in default thereof, such decree would be made against him as the chancellor should think equitable and just. Upon the expiration of this time, the defendant having failed to ■appear in response to said order, or to make any answer to the supplemental bill, the case was referred to a master to

p. 215
take testimony, and, upon the coming in of his report, a decree was made adjudging that the defendant had been guilty of adultery not only as charged in the original bill but as charged in the supplemental bill; dissolving the marriage between the parties; directing that the plaintiff should have the custody of the children of the marriage; and awarding alimony to the plaintiff pendente lite, at the rate of §100 per month from the filing of the bill to the date of the decree, and thenceforth at the rate of §45 per week for the maintenance and support of herself and the children, together with costs and $150 for counsel fees. It is to recover the alimony, costs and counsel fee due to the plaintiff under this decree, that the present action is brought.

Under the law of New Jersey, and under the chancery practice prevailing in that State, as testified to upon the trial of the present case, it seems that the supplemental bill is an independent proceeding, so far as the supplementary matter is concerned ; that an appearance to the original bill does not1 operate as an appearance to the new matter in the supplemental bill ; and that to bring the defendant into court, as to such new matters, he must be served with a writ of subpoena issued thereon, unless he appears thereto voluntarily. As he was not served with any subpoena issued on the supplemental bill in the New Jersey divorce suit, the defendant contends that the court of chancery there never obtained any jurisdiction over him to render the decree for the payment of alimony upon which this action is founded. He admits, however, that the decree in that suit was effectual to some extent and for one purpose. It appears that since its rendition, he has married a woman other than the plaintiff, so that his position is that the decree is good in New Jersey and everywhere else, so far as it dissolves the marriage 'contract, but it is not enforceable against him personally so far as it commands him to pay alimony. The language of the answer on this subject is as follows : “ But this defendant denies that said court of chancery of New Jersey ever obtained jurisdiction of the person of this defendant under

p. 216
said supplemental bill, or had any power to enter a personal decree against him, and he denies that such decree, so far as it is a personal decree against this defendant, is of any validity or effect, but he admits that said decree was effectual to dissolve the marriage status existing between him and the plaintiffand the defendant goes on in his answer and expressly admits the allegations contained in the eleventh paragraph of the complaint in this action, which are, that since the making of the decree in Hew Jersey, acting upon the.theory of the validity and binding force thereof, the defendant, on September 18, 1887, married a woman with whom he is now living as his wife in the City of Hew York.

After the final decree was entered in the Hew Jersey suit, the defendant appears to have been dissatisfied therewith, because it declared him to be guilty of the acts of adultery charged in the original, as well as in the supplemental bill; and accordingly he took steps to have it corrected. He caused Messrs. Wallis and Edwards, who described themselves as his solicitors for the purposes of the motion only, to serve a notice upon the soliciter for the complaint (the plaintiff here) that they should apply to the chancellor for an order modifying the final decree, by striking out the words • “ The said defendant has been guilty of the crime of adultery charged against him in the said bill of complaint and the supplemental bill thereto,” so as to make that part of the decree read : “ The said defendant has been guilty of the crime of adultery charged against him in the said supplemental bill thereto.” When the motion thus noticed came on to be heard, it was granted by the chancellor and the decree was amended on January 31, 1888, by omitting the finding that the defendant was guilty of the adultery charged against him by the original bill; so that the sole adjudication contained in the decree as to the defendant’s adultery is that he was guilty as charged in the supplemental bill. In amending the decree, however, no change was made in the provisions relating to alimony.

p. 217
The learned judge before whom this case was tried at special term, dismissed the complaint on the ground that the court of chancery in New Jersey had no jurisdiction to made any personal decree against the defendant. He did not pronounce upon the validity of the defendant’s second marriage, but held that the fact that he had married again did not preclude the defendant from questioning the jurisdiction of the New Jersey court so far as it directed him to pay alimony.

That the defendant was in court, in the. divorce suit, so far as the original, bill of complaint was concerned, is not disputed. He had caused his appearance to be entered, and the chancellor had acquired jurisdiction to proceed in the cause, and to render a judgment therein which should not only dissolve the marriage, but charge the defendant personally with the payment of alimony. It does not seem to me that he lost this jurisdiction because the plaintiff subsequently filed a supplemental bill alleging matters which had occurred after the original bill was filed. The suit remained the same suit and the judgment was a judgment in the original action. The filing of the supplemental bill was not the institution of a new action. Certainly, it could not have been deemed so by the chancellor, for the decree, even after the amendment, which was made at the instance of the defendant, was based not upon the supplemental bill alone, but upon the original bill as well. This is apparent, not only from the recital as to the filing of the original bill, and the subsequent statement that the decree is made upon the pleadings, but from the provisions in regard to the payment of alimony : “ And it is further ordered, that alimony pendente lite be allowed at the rate of one hundred dollars per month from the filing of the bill up to the daté of this order, and that from henceforth the said Thomas G. Kigney pay to the said Ella L. Kigney the sum of forty-five dollars per week, at the termination of each and every week from the date of this order, for her maintenance and the education of her said children.” The original

Concurrence

p. 218
bill was filed on April, 28, 1883. The supplemental bill was filed on May 18, 1886. The decree, as appears from the language just quoted, awarded the plaintiff alimony from the time the bill—that is, the original bill—was filed ; so that, of the entire amount of alimony which the defendant was directed to pay, more than $3600 accrued before the supplemental bill was filed at all, and while the suit rested solely upon the original bill, as to which it is conceded that the court had jurisdiction to render a personal judgment against the defendant.

It may be that it was error for the court of chancery to leave this portion of the decree standing, after striking out that part which adjudged the defendant guilty of the acts of adultery alleged in the original bill; but we have.nothing to do with that question. If the provision for the payment of alimony pendente lite, prior to the filing of the supplemental bill, is erroneous or irregular, the defendant must seek the appropriate relief in Hew Jersey. We have presented to us in this case a decree made in suit in the Hew Jersey court of chancery in which the defendant voluntarily appeared. The decree directs him to pay money. Hot only from its express terms, but by necessary implication from the provisions which it contains in respect to alimony, it is manifest that the decree rests, in part, at least, upon the original bill of complaint. Upon that bill, the court concededly possessed the power to make a personal decree against the defendant. Under these circumstances, while he may complain that the judgment was erroneously rendered, I do not think he can successfully question the jurisdiction of the court to render it.

In my opinion the decree for the payment of alimony is enforceable in this State. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

I concur in the result, but not on the grounds assigned by Mr. Justice Babtlett for his conclusion.

p. 219
The defendant admits by his answer that the court in New Jersey had jurisdiction to dissolve the marriage between himself and the plaintiff, and having admitted this fact, he cannot be heard to deny that the court had power to grant the incidental relief which naturally followed the right to dissolve the marriage. If the court had the jurisdiction to make any part of the decree it was empowered to make the whole decree.

As the defendant appeared in the action,

and thereby voluntarily subjected himself to the jurisdiction of the court, he became bound by the decree. The court never lost or was deprived of that jurisdiction. And even if the court proceeded irregularly in making the final decree, that irregularity should have been there corrected. The defendant having failed to take any proceeding for that end in the court of chancery of New Jersey, cannot resist in this action, the enforcement of the decree. The judgment must therefore be reversed and a new trial ordered.

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