Lynde v. Lynde

• Decision Date: 06 April 1900
• Citation: 162 N.Y. 405,56 N.E. 979
• Parties: LYNDE v. LYNDE.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 405

56 N.E. 979

LYNDE

v.LYNDE.

Court of Appeals of New York.

April 6, 1900.

Appeal from supreme court, appellate division, Second department.

Action by Mary W. Lynde against Charles W. Lynde. From a judgment in favor of plaintiff, modified by the appellate division (58 N. Y. Supp. 567), both parties appeal. Affirmed.

This action was brought upon a final decree of the court of chancery of the state of New Jersey, which, as the result of proceedings to recover alimony, adjudged that the plaintiff is entitled to recover of the defendant the sum of $7,840, and a counsel fee of $1,000; that the defendant pay to her permanent alimony at the rate of $80 a week from the date of the decree, and that he give security for the payment of the several sums directed by the decree to be paid; and further provided, upon his failure to comply with the decree, that application might be made for sequestration proceedings, for a receivership, and for an injunction. The complaint also asked to have enforced an order, made subsequently to the final decree, which appointed a receiver, and enjoined the defendant from disposing of his property, etc. The plaintiff and the defendant were married in the state of New Jersey in 1884, and were domiciled there. In 1892 the plaintiff filed her petition in chancery in that state, which alleged, among other things, desertion by her husband, and cruel treatment, and prayed that she might be divorced from him and that reasonable ali mony might be decreed to be paid to her. The defendant was not served personally, but by publication of process, and did not appear in the action, nor answer the petition. Thereafter such proceedings were had in the case that in 1893 a final decree was made, divorcing the petitioner from the defendant upon the ground of his willful and continued desertion, but containing no provision with respect to alimony. In 1896 the plaintiff filed a petition upon affidavits for the amendment of the decree of divorce so ao to provide for an award of alimony. The grounds of the application were that, though her petition in the divorce proceedings prayed for alimony, through the inadvertence or neglect of her solicitor the decree was entered without making provision adjudging the payment of alimony, or reserving the consideration thereof for hearing upon a future application. An order was granted by the chancellor directing the defendant to show cause why the petition should not be granted, which, with the moving papers, was personally served upon the defendant in this state. The defendant appeared in opposition to the application by J. Herbert Potts as his solicitor, and without any reservation upon the record as to the appearance. He filed an affidavit, in which he alleged that his residence was in the state of New York; that he ‘was, by the decree of this court, divorced from the said petitioner from the bond of matrimony, upon her petition, on August 7, 1893, and that since that time he has been married again to another woman, with whom he is now living,’ etc.; that ‘the decree for divorce was purposely drawn without providing for or reserving any alimony,’ etc.; that he was ‘financially unable to pay alimony’; and ‘that he is advised by counsel and believes that, the said decree having been made without reserving the question of alimony, and this defendant having been absolutely divorced from the said petitioner by said decree, and having since formed new relations and matrimonial obligations, that it would be illegal, inequitable, and unjust to now impose upon him the burden of alimony, so long after the granting of said absolute decree dissolving his first matrimonial relations absolutely without terms.’ After testimony had been taken, pursuant to an order of the chancellor, during the course of which Mr. Potts appeared as defendant's solicitor, and after argument upon the same by the solicitor for the petitioner and the solicitor for the defendant, the chancellor ordered that the decree of divorce theretofore made should be amended by inserting therein that ‘it is further ordered, adjudged, and decreed that the petitioner, Mary W. Lynde, shall have the right to apply to this court at any time hereafter, at the foot of this decree, for reasonable alimony, and such other relief in the premises touching alimony as may be equitable and just; and this court reserves the power to make such order or decree as may be necessary to allow and compel the payment of alimony to petitioner by defendant, or to refuse to allow alimony.’ It appears in the opinion of the chancellor, which is made a part of the record (54 N. J. Eq. 473, 35 Atl. 641), that he was satisfied that the omission of the decree to reserve the question as to alimony was due to the inadvertence of the petitioner's counsel, and that under the rule recognized by the court it will ‘amend its enrolled decree when the amendment is necessary to give full expression to its judgment.’ From the order amending the decree of divorce the defendant appealed to the court of errors and appeals, where the order was affirmed. 39 Atl. 1114. Thereupon, after reciting the various proceedings relating to the amendment of the decree of divorce, an order of reference was made as to whether alimony should be allowed to the petitioner, and, if so, how much. This order was entered after service of a notice upon the defendant's solicitor, and the reference was proceeded with after personal service upon the defendant of a summons to attend. Neither the defendant nor his solicitor appeared upon the reference, although duly notified, and such proceedings were had that the final decree herein sued upon was made on December 28, 1897, by the chancellor, which, after reciting the proceedings had, and the report of the master to whom it had been referred to report as to alimony, and ‘adjudging that a money judgment should be rendered against the defendant,’ adjudged and decreed as first hereinabove briefly described. Thereafter, upon proof of the failure of the defendant to comply with the final decree, an order dated February 8, 1898 (referred to in the complaint as of ‘24th day of March, 1898’), was made, appointing a receiver of the defendant's property in New Jersey, and directing the issuance of an injunction, etc. The receiver was unable to obtain possession of any of the defendant's property in New Jersey, and the defendant did not comply with the decree in any respect. The trial court decided that the plaintiff was entitled to a judgment against the defendant enforcing against him the decree of the chancery court of New Jersey, and further enforcing against him the order of that court which provided for the enforcement of the decree by the appointment of a receiver and by an injunction. She was held entitled to judgment against the defendant for the amount of alimony, counsel fee, and costs due or incurred under the New Jersey decree; for the amount of alimony accured since the decree; that he pay to her the sum of $80 a week from the date of the decision as and for permanent alimony; that he give a bond in the sum of $100,000 to secure the payment of the several sums of money specified; and that, upon his failure to comply with the provisions of the decision, a receiver might be appointed, ancillary to the receiver appointed by the court of chancery of New Jersey. Exceptions were filed to the decision, and thereafter judgment was entered in conformity with the decision. The appellate division, upon the defendant's appeal, modified the judgment so as to adjudge that the plaintiff recover of the defendant the sum of $8,840, and, as so modified, affirmed it. 58 N. Y. Supp. 567. The amount of the recovery, as allowed by the appellate division, represents the only and the precise amount of money which the final decree of the court in New Jersey adjudged to be due and payable from the defendant to the plaintiff at the date of its rendition. Cross appeals were taken by the parties from the judgment of the appellate division; the plaintiff because of its modification, and the defendant because of its affirmance, of the judgment of the trial court.

James Westervelt, Henry B. Gayley, and Matthew C. Fleming, for plaintiff.

John H. Kemble, for defendant.

GRAY, J. (after stating the facts).

I think that the appellate division has very correctly decided the questions in the case, and the opinion of Mr. Justice Bartlett, speaking for that court, leaves little, if anything, to be added to its reasoning. With respect to the main question-whether the court of chancery of the state of New Jersey acquired jurisdiction over the defendant to render the final decree for the payment of alimony-it is argued in his behalf that the decree of divorce was invalid as to him, and therefore afforded no support for the decree of alimony. That the decree of divorce was of no force as to him cannot be disputed. It is quite settled, at the present day, that no state can exercise jurisdiction and authority over persons or property without its territory. Its laws and the judgments of its tribunals can have no extraterritorial operation, except so far as the former may be allowed such by comity. The decree of divorce which the plaintiff obtained in New Jersey was effectual to determine her status as a citizen of that state towards the defendant, but as to him it effected nothing, and was void for want of personal service of process, or of an appearance by him in the divorce proceedings. One or the other of these conditions was required to be shown to enable the court to proceed with jurisdiction in personam. As the service of process was constructive, by publication, however authorized by the laws of the state, it was ineffectual against the defendant for any purpose. People v. Baker, 76 N. Y. 78;In re Kimball, 155 N. Y. 62, 49 N. E. 331;Pennoyer v. Neff, 95 U. S. 714,26 L. Ed. 565; Story, Confl. Laws, § 539. This action, however, is upon a final decree...