Ackerman v. Ackerman

• Decision Date: 22 November 1910
• Citation: 93 N.E. 192,200 N.Y. 72
• Parties: ACKERMAN v. ACKERMAN.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 72

93 N.E. 192

ACKERMAN

v.ACKERMAN.

Court of Appeals of New York.

Nov. 22, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Nellie M. Ackerman against Charles M. Ackerman. From a judgment of the Appellate Division (123 App. Div. 750,108 N. Y. Supp. 534) affirming a judgment for plaintiff, defendant appeals. Affirmed.George P. Breckenridge, for appellant.

John Hill Morgan, for respondent.

COLLIN, J.

The parties intermarried December 18, 1889, in the city of Brooklyn, N. Y., where they resided until January 21, 1891, when the defendant, by reason of a criminal charge against him, left the state of New York. In October, 1891, defendant was for a few days at Roselle, N. J., where the plaintiff visited him. He then went to Florida, where, on November 9, 1891, he was arrested, taken to Chicago, and afterwards confined in the Illinois state penitentiary. Upon his release he went to and became a resident of Florida. On the 30th day of November, 1895, he filed in the circuit court of St. Johns county, Fla., a bill asking for absolute divorce from the plaintiff on the ground of desertion. This action proceeded to a decree of February 27, 1896, dissolving the marriage between the parties. The plaintiff in this action (the defendant in the Florida action) was never served with process within the state of Florida, nor did she appear in said action in the state of Florida or voluntarily submit to the jurisdiction of the Florida court. The defendant told the plaintiff in a letter of October 6, 1896, received by her, that he had obtained the divorce. October 14, 1896, the defendant remarried at Ocala, Fla., and thence, until the commencement of this action, the parties to such marriage continuously lived as husband and wife. From October 14, 1896, to February, 1897, they lived in Gainesville, Fla., and since February, 1897, they have lived at Baltimore, Md. The review of the evidence, permitted by the fact that the decision of the Appellate Division was not unanimous, apprises us that the remarriage of defendant and cohabitation between the parties thereto is the only proof of the adultery of the defendant upon which the decree is based. About the 19th day of October, 1896, the plaintiff received a letter from the defendant's mother telling plaintiff of the defendant's remarriage. Thereupon plaintiff wrote to the defendant's sister informing her of defendant's remarriage, and thereafter often wrote and talked to defendant's sisters regarding said remarriage and the defendant's living with his second wife, and asked if the defendant and his second wife had any children. In October, 1896, plaintiff's brother-in-law, acting upon plaintiff's request, investigated defendant's remarriage by corresponding with various parties in Florida, from whom he received letters about that time informing him that the defendant had remarried and was living in Florida with his second wife, and he then sought to bring the matter before a grand jury in Florida to have the defendant committed for bigamy. In 1902 or 1903 plaintiff's brother-in-law located the defendant at Baltimore, Md. The plaintiff has been at all times since December 18, 1889, a resident of the city or borough of Brooklyn, N. Y. This action was commenced January 27, 1906. The complaint alleged that between the 1st day of January, 1904, and the 1st day of December, 1905, the defendant committed adultery at Baltimore with the woman whom he married in Florida. The Trial Term held that the decree of the circuit court of Florida assuming to dissolve the marriage between the parties to this action had no binding force or effect upon this plaintiff, and that a divorce should be granted her in this action on the ground of adultery.

The conclusion of the trial court that the Florida divorce was void as to this plaintiff is uncontested by defendant and is indubitable. Olmsted v. Olmsted, 190 N. Y. 458, 83 N. E. 569,123 Am. St. Rep. 585. Nor does the defendant oppose the rule of law that the marriage and cohabitation of defendant with his second wife constituted adultery. McGown v. McGown, 19 App. Div. 368,46 N. Y. Supp. 285, affirmed upon opinion below, 164 N. Y. 558, 58 N. E. 1089;Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129. The defendant contends, however, that plaintiff could not lawfully have the judgment dissolving the marriage between herself and the defendant, because she discovered the adultery of defendant more than five years before the commencement of this action, and therefore the judgment was forbidden by section 1758 of the Code of Civil Procedure.

This is a statutory action. The courts of this state have no common-law jurisdiction over the subject of divorce, and their authority is confined altogether to the exercise of such express and incidental powers as are conferred by the statute. Walker v. Walker, 155 N. Y. 77, 49 N. E. 663. The law of England concerning divorces was, until the act of 1858, the ecclesiastical and not the common law, and did not become a part of the law of this state. Burtis v. Burtis, Hopk. Ch. 557, 14 Am. Dec. 563. In this state, prior to the first statute, that of March 30, 1787 (Laws 1787, c. 69), the colonial governor and his council of the Legislature had sole jurisdiction concerning divorces. A survey at the outset of those parts of the statute relevant to the questions presented here will be advantageous. A married person may maintain an action to procure a judgment ‘divorcing the parties and dissolving the marriage, by reason of the defendant's adultery,’ where (among other cases) the parties were married within the state, or the plaintiff was a resident of the state, when the offense was committed, and is a resident thereof when the action is commenced. Code Civ. Proc. § 1756. Section 1758 of the Code of Civil Procedure is, in part, ‘In either of the following cases, the plaintiff is not entitled to a divorce, although the adultery is established: * * * (3) Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery, by the plaintiff, of the offense charged.’ When the action is brought by the wife, certain designated ‘regulations apply to the proceedings,’ one of which is: ‘The court may, in the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children of the marriage,and for the support of plaintiff, as justice requires, having regard to the circumstances of the respective parties.’ Code Civ. Proc. § 1759. A wife dwelling within the state, when she commences the action, is deemed a resident thereof, although her husband resides elsewhere. Id. § 1768. Other sections contain provisions relating to temporary alimony, costs, and other matters not involved, as we think, in our review. The right of plaintiff to maintain this action is unquestioned and unquestionable, because the parties were married within the state, and because also she was a resident of the state, when the offense was committed and when the action was commenced.

Was the judgment forbidden by section 1758 of the Code of Civil Procedure? The language of the introductory clause of that section is in its effect absolute and peremptory. The origin of the section is section 42 of title 1, chapter 8 of part 2 of the Revised Statutes of 1829, wherein the introductory clause read: ‘Although the fact of adultery be established, the court may deny a divorce in the following cases.’ This language remained unchanged, under the several revisions of the statutes, until 1880, and it gave the court the power to grant or deny, in his discretion, the divorce. In 1880 that part of the Revised Statutes which related to matrimonial actions was made a part of chapter 15 of the Code of Civil Procedure, and said section 42 became section 1758 of the Code, with, however, the introductory clause amended for the purpose of making it peremptory ‘in accordance with the settled construction thereof,’ to its present language. See note of Mr. Throop to the section. The words ‘is not entitled to’ therein are, therefore, the equivalent of the words ‘shall not have.’

The findings of the trial court make the conclusion unavoidable that plaintiff discovered the divorce and remarriage and consequently the adultery of defendant in October, 1896. She then became aware of the existence of the divorce and second marriage. She then ceased to be ignorant of them. Her husband then told her that he had obtained the divorce and within a short time thereafter her husband's mother told her that he had married another woman. Her brother-in-law, in an investigation of these matters, made at about the same time at her request, obtained the information that defendant was divorced from plaintiff, had remarried, and was living with his second wife in Florida. Such information gave just and cogent reason to plaintiff to believe that defendant had obtained a divorce from her and had married and was living with his second wife. When the plaintiff in October, 1896, ceased to be ignorant of those facts, when she was apprised of them by such sources and in such wise that she had just ground to believe them, then there was a discovery by her of them and of the adultery committed by defendant through them.

The complaint alleges, and the finding is, that the defendant committed the adultery between the 1st day of January, 1904, and the 1st day of December, 1905; the view underlying such averment and finding being, undoubtedly, that the cohabitation through each day constituted a new and independent offense discovered by plaintiff at the time of its commission. If this is the true view, this action was obviously commenced within five years after the discovery, by the plaintiff, of the offense charged. The authorities have firmly established, as it seems to us, the rule that the period of five years began...