State v. Foster

• Decision Date: 29 January 1948
• Docket Number: 33
• Citation: 44 Del. 384,57 A.2d 58
• Court: Court of General Sessions of Delaware
• Parties: STATE v. DELBERT H. FOSTER

57 A.2d 58

44 Del. 384

STATE v. DELBERT H. FOSTER

No. 33

Court of General Sessions of Delaware, New Castle

January 29, 1948

Appeal from Family Court from conviction for desertion and non-support.

Joseph H. Flanzer, Deputy Attorney-General, for the State.

A James Gallo for the Appellant.

LAYTON J., sitting.

OPINION

LAYTON, J.

The case comes to me by way of an appeal from the Family Court on a charge of desertion and non-support. In the Court Below the defendant, whom I shall hereafter refer to as "husband", was found guilty of deserting his wife in necessitous and destitute circumstances. The complaining witness, hereinafter referred to as "wife", was the only witness for the State. Briefly, she testified that she and her husband had been living in Portsmouth, Virginia, for approximately three years prior to August 2, 1938. The husband was in the regular Navy and was on shipboard a great deal of the time, but he maintained an apartment in Portsmouth for his wife and child and made his home at the apartment when on shore. On August 2d, the wife testified that the husband asked her to move to Brooklyn, New York because his ship would be stationed at the Brooklyn Navy Yard for the next six or eight months. On that day she says that she left Portsmouth with her child, proceeded to Brooklyn and established a home for herself and husband, that he used the apartment in Brooklyn as a home when ashore during the ensuing six or eight months and enjoyed marital relations with her in this home whenever ashore. Thereafter, about February 1, 1939, she and her son returned to Norfolk, established a new home there and she and her husband lived in Norfolk as man and wife until about March, 1943. Sometime later her husband was apparently transferred to Wilmington, Delaware, and she followed him to this city, established a home for him here and continued to live in Wilmington with her son until the desertion complained of, which occurred early in 1947. Shortly after she established residence in Wilmington for herself and family, her husband was ordered to Maine. She, however, remained in Wilmington, but in March, 1946, he received his discharge from the Navy and returned to live with his family in Wilmington where, she states, he deserted her in January, 1947. Further testimony reveals that the husband at all times from August 2, 1938, until the desertion complained of, held the complaining witness out to be his wife, that he represented to the naval authorities that she was his wife, claimed exemption for her as his wife in filing income tax returns and obtained her entry for treatment to a United States Naval Hospital, alleging that she was his wife. She denied that she was ever served with a summons in divorce in Portsmouth, Virginia, on or about the nineteenth day of July, 1938, or was aware of a decree of divorce thereafter entered by the Circuit Court of Virginia for the City of Portsmouth.

The husband testified that they were domiciled in Portsmouth for three years prior to the summer of 1938, but that during the summer of 1938 he returned from a cruise and was warned by a friend that his wife had been misbehaving. At his instigation, police officers called at his apartment and there found a sailor in a compromising situation with his wife. Immedately, he testified that he instituted a divorce proceeding on the grounds of adultery and expelled her from his home, but because he was a sailor, infrequently ashore, and had no one with whom he could leave his child, he permitted his wife to take the child with her and regularly sent her sufficient funds for the maintenance of the child. He states that his wife left Portsmouth on August 2, 1938, or thereabouts, and went to Brooklyn which was her home before marriage, and that he did on one or two occasions call at this home in Brooklyn to see his child when his ship was in port there, but that he never thereafter had marital relations with his wife. He admitted that she returned to Portsmouth in the early part of 1939 and lived there and that he would call at the apartment to see his child when his ship was in port in Portsmouth. When his wife moved to Wilmington in March, 1943, he admits that she had a home in Wilmington and that he visited her occasionally, but he was soon ordered to Maine, where he stayed until March, 1946, and that during this period he rarely, if ever, saw his wife. After his return to Wilmington in 1946, his testimony is not entirely clear whether he admits living at the Wilmington home of his wife without enjoying marital relations with her, or whether he denies entirely living with her.

Proceeding back for a moment to the summer of 1938, he and other witnesses gave depositions in the divorce proceeding upon the ground of adultery charged against his wife, and on October 24th a decree of divorce was granted by the Circuit Court of the City of Portsmouth against his wife. The exemplified copy of this divorce decree which is in evidence shows the process, the Chancery summons, the sheriff's return of personal service on the wife on July 19, 1938, the bill of complaint, four depositions -- three by police officers and one by the husband -- as to the adultery, and the decree of said court divorcing the husband from the wife.

The divorce decree of the Circuit Court of Portsmouth, Virginia, dated October 24, 1938, is set up as a defense to the charge of desertion and non-support which occurred in January, 1947. The State makes two contentions, (1) That the decree of divorce is invalid because (a) the Virginia Court had no jurisdiction of the parties (b) because the Court had no jurisdiction of the subject matter and (c) because Defendant, the husband, had condoned the act of adultery prior to the rendition of the decree; and (2) Even if the decree in question is valid and binding, the evidence of a reunion and cohabitation as man and wife for a period of nine years after the date of the decree of divorce established the existence of a new marriage upon which an information for desertion and non-support can be sustained.

The first contention on the part of the State amounts to a collateral attack upon the validity of a decree of divorce of the Courts of Virginia. Insofar as foreign decrees are concerned, where a judgment rendered in one State is challenged in another, a want of jurisdiction over either the person or the subject matter is open to inquiry. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; Ainscow v. Alexander, 28 Del. Chan. 545, 39 A.2d 54. Thus, if no personal service were in fact obtained upon the wife in the Virginia proceedings (no attempt at service by publication having been made) or if the Plaintiff in that proceeding, Defendant here, had removed his domicile from Virginia to New York State so that the Virginia Court had no jurisdiction of the subject matter, such decree would be invalid and no severance of the marital status would have occurred. But proof sufficient to sustain a finding of lack of jurisdiction of a foreign Court must necessarily be clear and convincing and the evidence before me falls short of sustaining the State's contention that the Virginia Court had jurisdiction of neither the parties nor the subject matter.

The exemplified copy of the Virginia decree in this case contains also the record entries of the entire proceeding. A return of personal service was made on July 19, 1938, upon the wife, the complaining witness here. She admits being in Portsmouth on that day. Her whereabouts were known. She may not have understood the significance of the service upon her or she may have forgotten the event after the lapse of ten years but I am convinced, and so find, that personal service was made upon Mrs. Foster in the Virginia divorce proceeding.

Nor am I satisfied from the evidence that the Defendant here Plaintiff in the Virginia action, removed his domicile from Virginia so that the Courts of that state lost jurisdiction of the subject matter of the action. I cannot ignore completely the record of the Virginia proceeding containing as it does the depositions of three police officers in the City of Portsmouth pointing clearly to marital misconduct on the part of the wife in Portsmouth, Virginia, on or about July 19, 1938. The husband also so testified and it is not unnatural that, returning from a cruise to find his wife in an extremely compromising situation, he expelled her from his home and instituted a divorce action. Having no one with whom to leave his son, he allowed his wife to assume custody...