Floyd v. Floyd

• Citation: 124 A. 525
• Parties: FLOYD v. FLOYD.
• Decision Date: 04 April 1924
• Court: United States State Supreme Court (New Jersey)

124 A. 525

FLOYD

v. FLOYD.

Court of Errors and Appeals of New Jersey.

April 4, 1924.

Trenchard and Parker, JJ., dissenting.

Appeal from Court of Chancery.

Suit by Edward T. Floyd against Helen J. Floyd. From an order refusing to strike bill of complaint and to quash writ of subpsubpœna, defendant appeals. Reversed, with directions.

Bourgeois & Coulomb, of Atlantic City, for appellant.

Cole & Cole, of Atlantic City (C. L. Cole, of Atlantic City, of counsel), for respondent.

KALISCH, J. This is an appeal from an order advised by Vice Chancellor Ingersoll refusing defendant's motion to strike out the bill of complaint and to quash the writ of subpoena.

The bill was filed by the complainant against the defendant, to the end that a certain decree of divorce obtained by her in the state of Nevada, against the complainant, be decreed by the court of chancery to have been fraudulently procured by her,

"and that the decree may be declared null and void and of no effect; and that she may be perpetually enjoined and restrained from setting up the decree or making use of the same in any manner or matter, in this or in any other jurisdiction to defeat or affect the marital rights of complainant; and that she be further commanded to present the truth of the matters alleged and shown in the bill of complaint to the district court of the state of Nevada, county of Washoe; and in good faith to urge the said district court to set aside its aforesaid decree of divorce."

The bill of complaint avers that the complainant and defendant intermarried at the town of Eastville, in the state of Virginia; that the complainant is a resident of Philadelphia, in the state of Pennsylvania, and that he and his wife lived together, whether at Eastville or Philadelphia does not appear, up to January 9, 1921, on which date she left her husband and went to the city of Reno, in the state of Nevada, for the purpose of obtaining residence there whereon to base her application for a divorce from complainant; that on the 3d day of September. 1921, she filed her petition for divorce in the Nevada court, alleging as grounds therefor that her husband had refused to provide the common necessaries for her, when such neglect was not the result of poverty; that on October 24, 1921, she was granted a final decree and the custody of their minor child; that immediately after the decree she—

"returned East, and settled, and took up her residence in the state of New Jersey, at Atlantic City, where she now resides;" "that it was never the intention of the defendant to live in the state of Nevada, nor was her residence in said state of Nevada for any other purpose than to perpetrate a fraud on her husband, and on the courts of this state," etc.

The many grounds of appeal set forth and relied on by appellant's counsel for a reversal of the decretal order may be conveniently summed up under two heads: (1) The court below was without jurisdiction to entertain the suit because the complainant is a resident of, and domiciled in, the state of Pennsylvania, and that both complainant and defendant were residents of, and domiciled in, the state of Pennsylvania at the time the defendant left complainant and went to the state of Nevada; (2) that the facts set out in the bill of complaint do not afford a legal basis for the interposition of a court of equity.

We have reached the conclusion that the complainant has no legal status in this state to attack the validity of the judgment of a court of the state of Nevada in a direct proceeding, and that, therefore, his bill of complaint should have been dismissed.

For, it is quite plain, what the complainant seeks by his bill is a review of the validity of a judgment of a court of general jurisdiction of the state of Nevada by our Court of Chancery, in a direct proceeding instituted for that special purpose. But even if it be conceded that such a course of procedure was permissible, nevertheless, it is quite apparent that it is only available to one who has a legal status, which the complainant obviously did not have, since the domicile of both husband and wife was in the state of Pennsylvania, and there was no res in this state which could be properly dealt with by the court of chancery.

Did the complainant have a legal status in this state? The statements in his bill of complaint answer this query in the negative. According to his averments, he and his wife were domiciled in the state of Pennsylvania, and she left him against his consent, and was guilty of wrongful conduct.

Under the decisions of this state it is held that the domicile of the wife is merged into that of the husband, and continues during coverture unless the wife acquires a separate domicile elsewhere, by her husband's consent, or where he abandons her or conducts himself in such a manner as would constitute, in law, a matrimonial offense and justify her in leaving him. Rinaldi v. Rinaldi (N. J. Ch.) 118 Atl. 685, in which case Chancellor Walker has collated the cases decided by the Court of Chancery and by this court, dealing with the question to the effect, as stated.

It is, therefore, clear that the matrimonial domicile, according to complainant's averments in his bill, is in the state of Pennsylvania.

It is hardly necessary, in view of the complainant's statements in his bill, to inquire into the question whether there was a res, in this state, of which a court of equity could properly take hold, for the bill does not disclose any, and reliance for the successful prosecution of the suit is based upon the simple fact that the defendant was residing in Atlantic City, and was served with process there, and that in leaving her husband and going to the state of Nevada and obtaining a divorce there, under the circumstances narrated in the hill, she perpetrated a fraud upon the complainant and courts of this state.

How can it be properly said, in view of the fact that the matrimonial domicile of the parties, so far as the facts of this case disclose, is in the state of Pennsylvania, that a fraud was perpetrated by the defendant upon the courts of...