Rigney v. Rigney

• Decision Date: 06 October 1891
• Citation: 127 N.Y. 408,28 N.E. 405
• Parties: RIGNEY v. RIGNEY.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 408

28 N.E. 405

RIGNEY

v.RIGNEY.¹

Court of Appeals of New York, Second Division.

Oct. 6, 1891.

Appeal by defendant from an order of the general term of the supreme court of the first department reversing a judgment which dismissed the complaint on the merits, without costs, entered on the decision of a special term. Reversed.

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, N. 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. Rigney, and the said defendant, Thomas C. Rigney, 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 hereof.’ 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 $45 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. 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 31st 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.

Hamilton Wallis, for appellant.

Joseph A. Shoudy, for respondent.

FOLLETT, C. J., ( after stating the facts.)

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; Rev. St. U. 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, 10 Sup. Ct. Rep. 269;Mankin v. Chandler, 2 Brock. 127; 2 Bish. Mar. & Div. § 20; Drake, Attachm. § 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. § 23; 2 Black, Judgm. §§ 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 marital 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, Const. Lim. 400; 2 Bish. Mar. & Div. § 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 N. Y. 23, 4 N. E. Rep. 110; Jones v. Jones, 108 N. Y. 415, 15 N. E. Rep. 707; Cross v. Cross, 108 N. Y. 628, 15 N. E. Rep. 333; Cook v. Cook, 56 Wis. 195, 14 N. W. Rep. 33, 443;Doughty v. Doughty, 28 N. J. Eq. 581;Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. Rep. 669; 2 Bish. Mar. & Div. § 153 et seq.; 2 Black, Judgm. § 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, Judgm. § 926; 2 Bish. Mar. & Div. § 25. It has been several times held, and the decisions rest upon principle, that a judgment which awards (1) a divorce, (2) alimony, (3) 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. Beard v. Beard, 21 Ind. 321;Lytle v. Lytle, 48 Ind. 200;Middleworth v. McDowell, 49 Ind. 386;Prosser v. Warner, 47 Vt. 667;Harding v. Alden, 9 Greenl. 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 N. Y. 18;De Meli v. De Meli, 120 N. Y. 485, 24 N. E. Rep. 996; 2 Bish. Mar. & Div. §§ 35, 36, 79; Cooley, Const. Lim. 406; 2 Black, Judgm. § 933; Freem. Judgm. §§ 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 mortgage property is not binding on a non-resident defendant who has not been served with process nor appeared in the action, (...