Rigney v. Rigney — 25 N.Y. St. Rep. 179

Majority

p. 179

Ella L. Rigney, App’lt, v. Thomas G. Rigney, Resp’t.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Divorce—Decree rendered in another state—Action to enforce PAYMENT OF ALIMONY.

The plaintiff sued defendant in the court of chancery of New Jersey for absolute divorce. The defendant appeared and answered the original bill, denying the acts of adultery therein charged. Subsequently plaintiff filed a supplemental bill, charging defendant with other acts, committed after the original bill was filed. The defendant was not served within New Jersey with the supplemental bill, but was served in New York, together with an order requiring him to appear and plead within a certain time. Upon the expiration of the time, the defendant failing to appear, a; decree was made adjudging defendant guilty of the acts charged, dissolving the marriage, and awarding alimony to defendant. It is now contended in his behalf, that, as under the New Jersey practice, the supplemental bill is an independent proceeding, as to the matter therein, that

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defendant must be served with a subpoena therein, and, not having been so served, no jurisdiction was acquired to render a decree for the payment of alimony. Subsequently the final decree was amended, adjudging defendant guilty, as charged in the supplemental bill, but no change was made in the provisions relating to alimony. Held, that inasmuch as the decree rests in part upon the original bill—as to which the court concededly possessed the power to render a personal judgment against defendant—it is enforceable in this state as to the provisions for the payment of alimony.

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, for app’lt; Hamilton Wallis, for resp’t.

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 process 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 make any answer to the supplemental bill, the case was referred to a master to 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 forty-five dollars 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 matter1 is concerned; that an appearance to the

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original bill does not operate as an appearance to the new matter in the supplemental bill; and that to bring the defendant into court, as to such new matter, 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 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 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 plaintiff,” and 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 New Jersey, acting upon the theory of the validity and binding force thereof, the defendant, on the 18th day of September, 1887, married a woman with whom he is now living as his wife in the city of New York.

After the final decree was entered in the New 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 & Edwards, who described themselves as his solicitors for the purposes of the motion only, to serve a notice upon the solicitor for the complainant (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 de

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fendant 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.

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 make 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 á 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 provision in regard to the payment of alimony: “And it is further ordered, that alimony pendente lite be allowed at the rate of $100 per month from the filing of the bill up to the date of this order, and that from henceforth the said Thomas G. Rigney pay to the said Ella L. Rigney 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 bill was filed on April 23, 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 $3,600 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.

Concurrence

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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 New Jersey. We have presented to us in this case a decree made in a suit in the New Jersey court of chancery, in which the defendant voluntarily appeared. That decree directs him to pay money. Not 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 apellant to abide the event.

I concur in the result, but not on the grounds assigned by Mr. Justice Bartlett for his conclusion. 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 no 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.