O'Dea v. O'Dea

We think the case of People v. Baker ( 76 N. Y. 78 ), is conclusive on the question brought up by this appeal, viz.: Whether the court in the State of Ohio had jurisdiction to try the issue raised by the petition of K., as between him and his wife, she then being a non-resident of Ohio, and never a resident of that State, nor at any time there served with process of the court. There are some differences in the detail of

(dissenting). The jurisdiction of the Supreme Court to grant the relief sought for in this action is purely statutory (Code, § 1745), and depends upon the existence of two facts there stated, and in substance repeated in the complaint. First. That the former husband was living at the time of the marriage in question; and second,, that the marriage between that former husband and the defendant was then in force. As to the first there is, upon the evidence, no dispute. The controversy is over the second, ánd is to be determined as effect is given or denied to the judgment rendered by the Ohio court. In Kinnier v. Kinnier ( 45 N. Y. 535 ), full effect was given to a judgment of divorce granted by a sister State, although for a cause not deemed sufficient in this State, while in People v. Baker ( 76 N. Y. 82 ), it did not avail the defend

The judgment in Baker's Case ( 76 N. Y. 78 ) was in assumed compliance with the rule theretofore uniformly laid down by the courts of this State, and is to be followed as a precedent in similar cases, but it should be taken in connection with the facts which seemed to warrant it, and so taking it, I feel at liberty to dissent from the conclusion of the majority of the court in the one at bar, and more readily because a limitation to the doctrine appears to have been in the mind of the court in that instance.

• In the language of the learned judge, whose opinion declared the views of his brethren, “ it presents this question : Gan a court, in another State, adjudge to be dissolved and at an end, the matrimonial relation of a citizen, of .this State, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, without a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him in his State.

“We assume, in putting this proposition,” says the learned judge, “that the defendant in error was in the situation therein stated.” “ We think,” he adds, “ that it may properly be thus assumed; ” and that importance was attached to this assumed situation of Baker, is apparent, not only from the care taken in stating the proposition, but by the argument by which it is sustained in the face of some evidence to the contrary. It appears, then, in the Baker Case, first, that the person whose rights the court in Ohio sought to affect is not only character

The whole argument of the learned judge was to show that the admission of the judgment of a court of a sister State, to credit and effect in another, was subject to limitations, and that it could be received only when it did not violate those principles which morality, or its standard of public policy, or municipal regulations require to be specially observed in the State in which the party relying on the foreign judgment had chosen to introduce it. “ There is no principle of comity,” he says, “ which demands more,” and so the ultimate question is treated by him- as one of expediency, but requiring nevertheless the rule of the foreign law to be adopted, “ Quatenus sine prejudicio indulgenter fieri potest.” It was not intended to deny the well-settled rule that where judgment has gone against a party in the State of his residence, or where not being a resident he has voluntarily appeared in the action, or

In Doughty v. Doughty (N. J. Eq. Rep., 12 C. E. Gr. 315; 1 Stew. 581 ,582), the court treat the question of jurisdiction in a divorce suit, arising out of the status and domicile of one of the parties, in the same spirit in which it is treated in Baker’s Case {supra), and cite the New York authorities, but the court say: “A judgment of divorce, proceeding from a jurisdiction founded on domicile, would not contravene essential rules of natural justice if actual notice to appear had been served on the defendant residing abroad. It is true that a notice so served on a litigant, out of the jurisdiction in which a suit is pending, may add nothing to the judicial right to take "cognizance over the cause, but, nevertheless, it may impart a'quality to the resulting judgment that will serve as a credential to it in a foreign jurisdiction,” and refuse to accept the one,then in question for reasons like those given in Baker's Case, saying: “ the residence of the defendant to it was known; she was not summoned; she did not appear, and she was not served with process, nor was notice given to her.” . Indeed as the object of all service is to give notice to the party on whom it is made, that he may be

This is said in Gibbs v. Ins. Co. ( 63 N. Y. 114 , 127), and is repeated in Pope's Case ( 87 N. Y. 137 , 140) with the addition, that any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. Indeed it is difficult to see how it could be otherwise. We hold it enough within the strictest rule to serve process upon a defendant, although he is in transit — passing through the State, neither abiding here, nor having any intention to remain. Of what less real and substantial efficacy for all beneficial purposes is the actual delivery of the paper outside the limits of the State ? So, as against a domiciled citizen of a State, a judgment rendered upon such substituted service is by the law of the State permitted, although he is in fact absent. And it is valid and binding upon him, though he is actually abiding in another State, and has neither appeared in the suit, nor had actual notice of it. His absence, whether temporary or prolonged, makes no difference. (Hunt v. Hunt, 72 N. Y. 217 .) The same principle of comity is applied in favor of one claiming title under a foreign law, as In re Waite ( 99 N. Y. 433 ), where after a most exhaustive and elaborate examination of authorities it was decided upon those and upon principle, that while the statutes of foreign States have no force or effect within this State, and hence the statutory title of foreign assignees in bankruptcy can have no recognition by virtue merely of its origin, yet, that the comity of nations permits a certain effect to be given to titles so derived, when it can be allowed without injustice to our own citizens. So in many other instances effect is given by way of comity to the laws of other States, as in recognizing an administrator or guardian appointed under another jurisdiction. He may not act de jure, but it does not follow that his claim to property or to the care of a minor is to be denied.

In the case at bar it was shown that the process from the

Third. In another respect, although of much less importance, there is another difference to be noted in the relation of the two cases to our law. At the time of the decision of the Baker Case (January 21, 1879), an order for service by publication, or without the State, in a divorce case, could only be had “ where the defendant is a resident of the State ” (Code of Civil Proc., § 438, subd. 4), and to that fact reference was made in the opinion; but those words were by a subsequent amendment (Laws of 1879, chap. 542) stricken out and the law restored to its original condition, so that now judgment in this State may be rendered against a non-resident defendant in a matrimonial action, either for a separation, a divorce absolute, or an annulment of a marriage, upon service of the process upon him or her outside of the State, or by publication.

It is apparent, therefore, that the subject was before the legislature for deliberate examination, and their conclusion will not permit us .to say that public policy is opposed to such proceedings as those in Ohio, now under review, for it authorizes the doing in this State of the same thing, in the same manner and with the same object. Moreover, as if to remove any inequality in applying it, and relieve the married woman from the traction of that legal fiction by which she is supposed to follow and be with the husband, although, in fact, separated by intervening continents, it provides that if she dwells within the State when she commences an action for divorce or for separation, she is deemed a resident thereof, although her husband.

The law of procedure under which the Ohio court acted was precisely like our own, and I can find no circumstances in the case which require us to depart from the rules of comity, which exact consideration for the laws and judicial proceedings of other States, and on which we depend for respect to our own. I have so far looked at the case from the appellant’s stand-point, and treated the rights of the respondent as if she had made herself in Canada a domicile separate from that of her husband. Even in that view, the learned .court below committed no error in holding that there was no substantial ground upon which the plaintiff could invoke its interference, and that the case was not one which required the marriage ■ between these parties to be annulled. But another, and I think correct statement, of the respondent’s position, permits us to say that her domicile was, at the time of the divorce proceedings, with her husband in the State of Ohio, and in that respect also the case differs from the Baker Gase.

Except as altered by statute, the rule of the common law, which identifies the married woman with her husband, is adhered to by the courts of this State, and upon the question now before us, its decisions require us to hold that the domicile of the husband is prima faoie that of the wife, not only because the home of one is the home of the other, but because it is her duty to go with him where he goes, and dwell with him where he dwells. Indeed under the maxim referred to it could not be otherwise. One in person, and that person the husband, the common law by no fiction could give her a separate domicile, nor even admit of its possibility. Therefore in Baker's Case, the wife, plaintiff in the divorce proceedings, in theory of law had her domicile with her husband, and thus both were residents and citizens of this State. In the case

But in Hunt v. Hunt (supra) it is said that “ from necessity, she may in certain cases have a domicile in another jurisdiction than that of her husband, as when they are living apart under a judicial decree of separation, or when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce,” and so the reason of the rule weakens in power when in extreme cases the conduct of the husband has been such as to make it proper for the wife to seek relief from her obligation to have the same home and interest with him, and altogether ceases when a judicial decree has separated.and adjudged them to live apart. These exceptions are justified, the first upon the ground that otherwise “ the husband might constantly change his domicile, and drawing that of his wife after his, prevent her finding a court having that jurisdiction of person which would enable her to try her suit for redress and relief.

“It is evident,” says the learned judge, “ that this reason,” by which I understand him to mean the reason of the rule, viz.: the theoretic identity of person and of interest between the husband and the wife in the eye of the law, “ will also operate in favor of the husband, so that where he has ground for a suit by reason of the misconduct of the wife, sh.e may not so often change her domicile as to baffle him in his- pursuit of a remedy.” Now in the case before us no ground can be found, upon which.either exception can be placed. .By deliberate stipulation in this case, it is conceded that defendant in the Ohio suit—that is the wife, left her husband, the plaintiS in that suit. No fault or error in behavior, or .bad treatment on bis part is suggested. On the contrary, the record -shows that at the time of the commencement of the suit m December, 1864, she had beén willfully absent from him for more than three years ; that he had applied to her to live with him, and she had refused to do so ; that always while they lived together, he had provided well for her and treated her properly.

The chief case cited by the appellant is Borden v. Fitch, ( 15 Johns. 121 ), which is relied upon as “an express decision, to the effect that the acquisition of a new domicile by the husband does not draw the wife into the same jurisdiction.” It furnishes no exception to the rule laid down in Hunt v. Hunt (supra). Fitch and his wife were inhabitants of, and domiciled in Connecticut; they lived together there until October, 1808, when upon her application and notice, and after appearance, and contest by him, the general assembly of that State, for abundant cause, decreed a separation at her pleasure, with, to her, “ the privileges of a feme sole” and alimony to be paid by him annually. At all times after she continued to reside there, but in 1813, upon an allegation that she had willfully deserted him, he obtained, in Vermont, a decree of divorce. He afterward married in this State, and was shortly after sued by the second wifels mother for debauching her daughter. He relied upon the Vermont divorce, but without success, the court holding that the act of the legislature of Connecticut should be deemed a divorce a mensa et thora, and involved a legal separation, and so the case was brought within the first exception I have referred to, viz.: a separation by judicial decree, or what is of equal or greater effect, a legislative enactment.

I do not think it necessary to inquire how the case would stand if the husband had deserted his wife; such a case is not before us. Until we are prepared to give up the common-law rule as respects the relation and unity of man and wife, we cannot hold that the wife at her pleasure, and without cause, may establish a separate residence or a domicile beyond the

It follows, I think, that the true and safe rule is as stated by Cooley (Canst. Lim. 400), that the actual bona fide residence of either husband or wife within a State Avill give to that State authority to determine the status of such party, and to pass upon any questions affecting his or her continuance in the marriage relation, and that the courts of that State, authorized by its legislature to take cognizance of the subject, may lawfully pass upon such questions and annul the marriage for any cause allowed by the local law, .that jurisdiction over the opposite party may be acquired in such manner as the legislature

There is another proposition yet to be considered and answered in his favor before the plaintiff can succeed on this appeal. The Baker Case ('supra), however much or little it may be regarded as differing in principle from the one before us, brought before the court a very different case, arising under a different statute. His conviction for bigamy was upheld because he contracted a.marriage in this State in violation of the act concerning divorces, and for the purposes of that act, and proceedings for its violation, and the punishment of bigamy, it was evidently thought immaterial whether his first marriage was “in force ” or not. Referring to the claim urged for the prisoner that our laws permitted such proceedings as were had against him in the Ohio court, the learned judge says: “ This is but to say that on the principle of the comity of States, we should give effect to this judgment.” “But,” he continues, “this principle is not applied where the laws and judicial acts of another State are contrary to our own public policy, or to abstract justice, or pure morals. The policy of this State always has been that there may of right be but one sufficient cause for divorce a vinculo, and .this policy has been upheld with strenuous efforts.” The divorce then in question was not for that cause and it was not to be recognized. Under those laws a person whose guilty act has made divorce possible cannot marry a second time, if merely the former wife or husband is living. . (2 R. S. 139, §§ 5, 6.)

Those are the words of prohibition, and to bring a party within them it is necessary only to show, first, a prior marriage, and second, that the parties thereto are living. “It does not import that the relation still 'continues, or, on the other hand, that it has ceased. Upon that point it is silent, but limits the

One is satisfied with the fact of a former marriage and the present existence of the parties; the other requires as much, viz.: (1) A former marriage; (2) the present pxistenee of the parties, and also (3) that the former marriage itself be then in force. JSTow in Baker's Case [supra) the court say (p. 84). “We must and do concede that a State may adjudge the status of its citizen toward a non-resident, and may authorize to that end such judicial proceeding as it sees fit, and that other States must acquiesce so long as the operation of the judgment is kept within its own borders.” So is the whole argument of the learned judge. Hence he says: “ If one party to a proceeding is domiciled in a State, the status of that party, as affected by the matrimonial relation, may be adjudged upon, and confirmed or changed in accordance with the laws of that State.” The claim was indeed made that the State, where the other party was domiciled, might exercise over him or her the same j urisdiction and so apply the statute against bigamy. But that does not contain the governing words of the other. And even if within that opinion the courts of Ohio could not declare the status of the defendant in this State, it could and it did lift the marriage yoke from off the neck of its citizen, relieved him from the “vinculum matrimonii,” and hence although the parties to the former marriage still lived, one of "them was confessedly relieved from all his marital obligations and legally disabled from enforcing those of the other1. She had no husband at least in the State where he lived. The contract was no longer binding on him. It follows that the former marriage cannot be said to have been in force at the time of the marriage which is the subject of this action.

When the statute speaks of a “ marriage then ” (at the time of the second marriage) “in force,” it must mean a marriage by which both parties are bound and as to which the relation

One other question remains: Was the evidence on which the referee put his decision competent ? Public policy forbids that a marriage should be dissolved either by the mere consent of the parties thereto, or by a judicial proceeding which has no other foundation than their admissions. Were it otherwise, the morals of the community would be easily corrupted and the forms of law made effectual in the profanation of marriage. Therefore the Oode, which has changed the common-law rule as to the competency of witnesses in civil actions, forbids husband or wife testifying, in an action for divorce on the ground of adultery, to any matter save their marriage. What cannot be done by their testimony should not be done indirectly by any act of theirs, neither by admission in pleading nor by stipulation of counsel. Here we find no evidence of the fact of the former marriage. The pleadings indeed concede it, and counsel have stipulated that it took place. Neither of these things can have any efficacy, except as they were authorized by the parties, and their admission or statement, however formally expressed, should 'have no effect when their testimony as witnesses is excluded. Neither will the law permit such a judgment by default, although in other actions the silence of the defendant is effectual as an admission in favor of the plaintiff. The fact pleaded and the fact stipulated is the vital one in the case, and to permit a divorce under such circumstances is practically to concede that a relation in the continuance of which the State has an interest, may be dissolved, as it was formed, by the simple agreement of the parties.

I have examined the eases, which, as cited by the appellant, seemed to bear upon this question, but find none which requires a different conclusion from the one expressed. In my opinion, therefore, the learned court below did. not err under „ne circumstances of this case, in whatever aspect they may be viewed, in refusing to annul the marriage between the plaintiff and the defendant. They might well hold that the plaintiff’s case was not proven, or if there was irregularity in

I think the order appealed from should be affirmed and the defendant have judgment absolute, dismissing the complaint.

Ruger, Oh. J., Rapallo, Andrews and Earl, JJ., concur, for reversal; Miller and Finch, JJ., concur with Danforth, J., and dissent.

Order of General Term reversed and judgment of Special Term affirmed.