Rigney v. Rigney — 40 N.Y. St. Rep. 210

Majority

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Ella L. Rigney, Resp’t, v. Thomas G. Rigney, App’lt.^[1]

(Court of Appeals, Second Division,

Filed October 6, 1891.)

Headnote

1. Divorce—Jurisdiction—Judgment for costs and alimony.

A judgment which awards a divorce, alimony and costs, while valid as-affecting the marital status of the plaintiff, does not bind the defendant as to sums allowed for alimony and costs in case the judgment be recovered in the state in which the wife is a resident citizen, against her non-resident husband, who has not appeared in the action nor has been served with process in the state in which the action was brought.

3. Same—Chancery court of New Jersey.

'In an action brought in the court of chancery of the state of New Jersey, by a wife there resident against her husband, a resident of New York, the latter appeared and filed an answer, hut the issue was never brought to trial. Later plaintiff renewed the charge by a supplemental bill, which was served by publication and personally in New York. Plaintiff did not plead to this and judgment was entered by default. Held, that defendant’s appearance in the court of chancery, in obedience to the subpoena issued upon filing the original bill of complaint, gave that court no jurisdiction to render a personal judgment against him on the supplemental bill which alleged the commission of a matrimonial offense subsequent to the issue joined on the original bill.

3. Same—Estoppel.

Defendant, by his subsequent marriage and motion to correct the judgment, did not recognize its validity so as to estop him from questioning-the right of the court of chancery to render a judgment for alimony and costs.

Appeal from an order of the general term of the supreme court of the first department, reversing a judgment which dis

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missed the complaint on the merits, without costs, entered on the decision of a special term.

February 12, 1873, the parties intermarried at Poughkeepsie, N. Y., and continued to reside in this state until January, 1877, when they removed to Elizabeth, 1ST. J., where both resided until January, 1883, when the defendant abandoned his wife, and thereafter resided in the city of New York; but the plaintiff has continued to reside at Elizabeth. On the 23d of April, 1883, the plaintiff filed a bill in the court of chancery of New Jersey wherein she alleged that the defendant had committed adultery with several persons on different occasions in the city of New York, and prayed for a judgment divorcing her and awarding to her the custody of the children of the marriage, with alimony and costs. On the 4th of August, 1883, the defendant appeared in the suit and filed an answer denying the allegations, of adultery, but the issue so joined was never brought to trial. April 21, 1886, the plaintiff verified a supplemental bill wherein she alleged that the defendant had committed adultery with a person named at the city of New York at various times since the commencement of the suit, and prayed for the same relief asked in the original bill. On the 2d of May, 1887, an order was made by the court of chancery directing that a certified copy of the order and supplemental bill be served on the defendant personally; or in default of such service, by publication, and requiring the defendant to plead on or before May 18,1887. It is recited in this order that the defendant was then a resident of New York. On the 4th day of May, 1887, the defendant was personally served with a certified copy of the supplemental bill and order at the city of New York. May 18, 1887, the supplemental bill was filed, and on the next day, the defendant having failed to plead, as required, his default was entered and the case referred to a master to take proof and report. June 11, 1887, the master’s report was filed, in which he reported that the defendant had committed adultery as alleged in the supplemental bill; and that all the material allegations in the bill and supplemental bill were true.

On the 13th of June, 1887, a final decree was entered whereby it was found: “That 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,” and it was in said decree: “ Ordered, adjudged and decreed that the said complainant, Ella L. Eigney, and the said defendant, Thomas Gk Eigney, be divorced from the bond of matrimony for the cause aforesaid, and the marriage between them is hereby dissolved accordingly, and the said parties, and each of them are, and is hereby freed and discharged from the obligations thereof.” It was further adjudged that the custody of the children be awarded to the mother and that the defendant pay alimony for the support of his wife and children at the rate of $100 per month from the filing of the bill to the entry of the decree; and thereafter at the rate of forty-five dollars per week, with the costs of the suit. September 18, 1887, the defendant assumed to contract a marriage with one A. H,, and they are now living together as husband and wife.

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On the 9th of September, 1887, the solicitors who filed the defendant’s answer to the original bill served upon the solicitor of the complainant a notice that he would apply to the chancellor for an order striking from the final decree the words: “ Bill of complaint and the,” so that the decree would read: “The said defendant has been guilty of the crime of adultery charged against him in the said supplemental bill thereto.” No modification was asked for as to alimony or costs, and the solicitors limited their appearance for the purpose of the motion only. On the 81st of January, 1888, the motion was granted, the final decree amended as asked and was re-enrolled and re-entered. A subsequent motion in behalf of the, plaintiff 'to restore the decree as originally entered, was, April 2, 1888, denied. On the 4th of August, 1887, this action was begun in the supreme court of this state to recover the amount awarded by the decree of the court of chancery for alimony and costs, no part of which has been paid.

Joseph A. Shoudy, for resp’t; Hamilton Wallis, for app’lt.

The courts of this state are commanded by the constitution and statutes of the United States to give such faith and credit to the judgment of the court of chancery of New Jersey as the judgment has, by law or usage, in the courts of that state. Const. U. S., art 4, § 1; U. S. E. S., § 905. The ' jurisdiction of the court of chancery to render the judgment against this defendant for costs and alimony may be inquired into by the courts of this state, and whether it had or not is the only question presented by the record.

A suit for a divorce, though not strictly a proceeding in rem,, Cole v. Cunningham, 133 U. S., 107 , 116; Mankin v. Chandler, 2 Brock., 127 ; 2 Bish. Mar., Div. & Sep., § 20 ; Drake Att., § 5, is of the nature of such a proceeding, or quasi in rem, in so far as it affects the marital status of the parties; but as to alimony and costs it is a proceeding in personam. People v. Baker, 76 N. Y., 78 ; 2 Bish. Mar., Div. & Sep., § 23; 2 Black Judg., §§ 925,, 933. The courts of the United States and those of most of the-several states, including New York and New Jersey, hold a. divorce to be valid, so far as it affects the material status of the-plaintiff, which is granted by the courts of a state pursuant to its. statutes to one of its resident citizens, in an action brought by such citizen against a resident citizen of another state, though the defendant neither appears in the action nor is served with process in the-state wherein the divorce is granted. Cheever v. Wilson, 9 Wall.,, 108 ; Pennoyer v. Neff, 95 U. S., 714 ; People v. Baker, 76 N. Y., 78 ; Doughty v. Doughty, 28 N. J. Eq., 581 ; Cooley Con. Lim., 400; 2 Bish. Mar., Div. & Sep., § 150, et seq. But the courts of this and some of the states hold that the marital status of such non-resident defendant is not changed by a judgment so recovered, he or she remaining a married person. People v. Baker, 76 N. Y., 78 : O'Dea v. O'Dea, 101 id., 23; Jones v. Jones, 108 id., 415; 13 N. Y. State Rep., 838; Cross v. Cross, 108 N. Y., 628 ; 13 N. Y. State Rep., 470; Cook v. Cook, 56 Wis., 195 ;

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Doughty v. Doughty, 28 N. J. Eq., 581 ; Flower v. Flower, 42 id., 152; 2 Bish. Mar., Div. & Sep., § 153, et seq; 2 Black Judg., 926. In case a defendant is a resident of the state in which the action is brought, and amenable to its substantive laws and its laws of procedure, his marital relation may be changed by an ex parte judgment of divorce if constructive service of the process be duly made. Hunt v. Hunt, 72 N. Y., 217 ; Hood v. Hood, 11 Allen, 196 ; 2 Black Judg., § 926; 2 Bish. Mar., Div. & Sep., §25.

It has been several times held, and the decisions rest upon principle, that a judgment which awards, (1), A divorce; (2), alimony; (3), caste, while valid as affecting the marital status of the plaintiff, does not bind the defendant as to sums allowed for alimony and costs in case the judgment be recovered in the state in which the wife is a resident citizen against her non-resident husband, who has not appeared in the action, nor has been served with process in the state in which the action was brought. Beard v. Beard, 21 Ind., 321 ; Lytle v. Lytle, 48 id., 200; Middle-worth v. McDowell, 49 id., 386; Prosser v. Warner, 47 Vt., 667 ; Harding v. Alden, 9 Grreenl., 140; Garner v. Garner, 56 Md., 127 ; Van Storch v. Griffin, 71 Pa. St, 240 ; People v. Baker, 76 N. Y., 78 , 87; Van Voorhis v. Brintnall, 86 id., 18; DeMeli v. De Meli, 120 id., 485; 81 N. Y. State Rep., 704 ; 2 Bish. Mar., Div. & Sep., §§ 35, 36, 79; Cool. Con. Lim., 406; 2 Black. Judg., § 933, Freem. Judg., §§ 584, 586.

No final process is required to enforce that part of the judgment which decrees the divorce; but the sums allowed for costs and alimony can only be collected in New Jersey by a process against the defendant or his property; and, like other money judgments, it is not binding on a non-resident defendant unless he is served with process in the state, or appears in the action. A judgment for a deficiency arising upon the sale of mortgaged property is not binding on a non-resident defendant who has not been served with process, nor appeared in the action, Schwinger v. Hickok, 53 N. Y., 280 , and such is the rule in respect to personal judgments rendered against non-resident defendants in actions begun by substituted service in which property is attached. Oakley v. Aspinwall, 4 N. Y., 514 ; Durant v. Abendroth, 97 id., 132; Cooper v. Reynolds, 10 Wall., 308 ; Drake Att, § 5. A judgment for alimony and costs cannot be supported on the ground that they are mere incidents of and subordinate to the right to a divorce, and the jurisdiction which is sufficient to support a decree changing the marital status of the plaintiff will not necessarily sustain a judgment for alimony and costs. This brings us to the question whether the defendant’s appearance in the court of chancery in obedience to the subpoena issued upon filing the original bill of complaint gave that court jurisdiction to render a personal judgment against him on the supplemental bill, which alleged the commission of a matrimonial offense subsequent to the issue joined on the original bill. This question must be determined by the law of New Jersey, for no greater effect can be given the judgment in

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this state than would be given to it in the state where rendered. U. S. R. S., § 905; Board of Public Works v. Columbia College, 17 Wall., 521 ; Suydam v. Barber, 18 N. Y., 468 . Each state has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire by judgments recovered in its tribunals. The practice arid' procedure may be established by statute, or by the rules and decisions of the courts, and the courts of a sister state cannot give greater effect to the procedure adopted than is given to it by the courts of the state in which the judgment was recovered.

At the date of the filing of the supplemental bill the defendant had ceased to be a resident of the state of New Jersey, as was found by the trial court, and had become a resident of the state of New York, as was alleged in a petition filed by the plaintiff. The trial court found upon undisputed evidence that under the law of New Jersey and the practice of its court of chancery, that jurisdiction to render a judgment for alimony and costs on the supplemental bill, enforceable in that state, against the defendant, could not be acquired without service'of a new subpoena in the state, or by his appearance in the action subsequent to the filing of the supplemental bill. The practice of the plaintiff’s solicitor, and sanctioned by the court of chancery, was strictly in accordance with this finding. The defendant’s solicitors resided in the state of New Jersey, but no notice was given them of the application to file the supplemental bill, or any of the proceedings taken after it was filed. The plaintiff’s solicitor procured a new subpoena to be issued and obtained an order for its service by publication, or personally without the state. It does not appear that the solicitors for the defendant were served with the subpoena, or with a copy of the supplemental bill, or had notice that one had been filed. If the defendant was deemed to be in court for the purposes of the supplemental bill and the proceedings thereunder by virtue of his appearance and answering the original bill, his solicitors would have been entitled to notice of the proceedings subsequent to the filing of the supplemental bill and the entry of a pro confessa judgment would not have been authorized.

It is" urged that the omission to serve the defendant with a subpoena within the state, after the supplemental bill was filed,. was a mere irregularity and not jurisdictional. The difficulty i with this position is that it was not so found. On the contrary, \ service within the state was found to be, under the law and prac- J tice of the court of chancery of New Jersey, an indispensable prerequisite to the rendition of a personal judgment An act or omission which would be held only an irregularity under the laws of one state, may, by the laws of another, be fatal to the right of the court to proceed to judgment.

By the rules and decisions of the English court of chancery, which have been generally adopted and followed by the equity courts of the United States and of the several states, facts occurring after the filing of an original bill, which, if proved, would entitle the complainant to the relief prayed for in the orignal bill, cannot be introduced therein by amendment, but mnjr be brought

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before the court, if at all, by a supplemental bill, Story’s Eq. Pldgs., § 332, and when a supplemental bill is filed the defendant must be brought into court by the service of a new subpoena within the state, unless he voluntarily appears after the supplemental bill is filed, Barber v. Beers, 3 Stew. N. J. Dig., 252, p. 400 ; Lawrence v. Bolton, 3 Paige Ch., 294 .

It is urged that the defendant, by his subsequent marriage and motion to correct the judgment, recognized its validity in all its parts, and is estopped from questioning the right of the court of chancery to render a judgment for alimony and costs. We fail to discover on what principle these facts can be held to create an estoppel by conduct, as the plaintiff neither did, nor omitted to do anything by reason of these acts.

The order must be reversed and judgment absolute rendered against the plaintiff, with costs.

All concur.