Atherton v. Atherton

Decision Date01 March 1898
Citation155 N.Y. 129,49 N.E. 933
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, general term, Fourth department.

Action by Mary G. Atherton against Peter Lee Atherton. From a judgment of the general term (31 N. Y. Supp. 977) affirming the judgment of the Oneida county special term granting plaintiff a limited divorce, defendant appeals. Affirmed.

Alex. P. Humphrey and Simon W. Rosendale, for appellant.

William Kernan, for respondent.


The defendant seeks on this appeal the reversal of a judgment for limited divorce recovered against him by his wife. The judgment rests upon the finding of the trial court that the defendant had treated the plaintiff in such a cruel and inhuman manner that it rendered it unsafe and improper for her to cohabit with him, and justified her in seeking a separate residence. It gives her alimony, and the custody of the only child of the marriage. The plaintiff, a young lady of refinement and excellent social position, was married, when 22 years old, to the defendant, at her father's house in Clinton, N. Y., on the 17th day of October, 1888. The defendant is a young man of good family, a native of Kentucky, and at the time of his marriage resided with his parents at the city of Louisville. After the wedding trip, the plaintiff and defendant took up their residence at the house of defendant's parents. On the 8th of January, 1890, a daughter was born, and is the only issue of the marriage. On the 3d of October, 1891, the plaintiff left her husband's house permanently, taking the child with her. On the 10th day of October, 1891, and before her departure for the state of New York, the plaintiff, her trustee, and the defendant, with the advice of counsel, entered into a certain agreement that will be referred to later. Immediately thereafter the plaintiff departed from the commonwealth of Kentucky, and came to the state of New York, with the intention, as the trial court finds, of changing her residence and domicile from Kentucky to New York. In the month of December, 1892, the defendant commenced an action against plaintiff in Kentucky for an absolute divorce, alleging that she had abandoned him in the month of October, 1891, without fault on his part, and such abandonment had continued uninterruptedly for the period of more than one year. Under the statutes of Kentucky the proof of this state of facts entitles a plaintiff to a decree dissolving the bonds of matrimony. The defendant was not served with process in Kentucky, nor did she appear in the action. The decree of divorce was obtained upon the assumption that the defendant was a resident of Kentucky, who had been absent therefrom for four months, and could, therefore, receive notice of commencement and pendency of the action by a designated constructive process. The plaintiff made his formal proofs, and, in the absence of the defendant, the Kentucky decree was entered about March 14, 1893. The wife began the present action for a limited divorce on the ground of cruel and inhuman treatment in January, 1893, and the trial court rendered judgment in her favor in June, 1893. The husband appeared in this case, was represented by able Kentucky and New York counsel, and the issues were thoroughly tried.

The principal question presented by this appeal is whether the Kentucky decree is a bar to this action, the defendant having set it up in his answer. The plaintiff attacked this decree on the ground that it was entered by a court having no jurisdiction of her person, she being, at the time the Kentucky action was begun and the decree therein entered, a resident of the state of New York. On the other hand, the defendant insisted that his wife was, at the time referred to, a resident of Kentucky, and, consequently, bound by the decree. This was one of the issues tried and decided in favor of the wife. The learned counsel for the defendant from Kentucky argued with great earnestness and ability that the matrimonial domicile of the wife is that of her husband, and consequently we are compelled by the constitution of the United States to give full faith and credit to the decree in her husband's favor. Article 4, § 1. In view of the fact that we have a finding fixing the wife's domicile in this state, we are of opinion the Kentucky decree is void as to her under the law as well settled in this jurisdiction. In is undoubtedly true that the matrimonial domicile of the wife is that of her husband, but this general rule has its exceptions. In this case we have the finding that the plaintiff was justified in leaving her husband, and that her sole reason for so doing was his cruel and inhuman treatment. This court said in Hunt v. Hunt, 72 N. Y. 217, in speaking of the general rule as to the wife's domicile (at page 242): ‘There are, however, exceptions to the rule, one of which is invoked by the plaintiff in this suit, so that in certain cases a married woman may have a domicile in another jurisdiction that that of her husband. This is so, when they are living apart under a judicial decree of separation, or when the conduct of the husbabd has been such as...

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13 cases
  • Peter Lee Atherton v. Mary Atherton
    • United States
    • U.S. Supreme Court
    • April 15, 1901
    ...general term of the supreme court of New York, and by the court of appeals of the state. 82 Hun, 179, 31 N. Y. Supp. 977, 155 N. Y. 129, 40 L. R. A. 291, 49 N. E. 933. The defendant sued out this writ of error, on the ground that the judgment did not give full faith and credit to the decree......
  • Petition of Taffel
    • United States
    • U.S. District Court — Southern District of New York
    • May 28, 1941
    ...non judice, and of no legal effect in the absence of a bona fide residence and matrimonial domicile. Atherton v. Atherton, 155 N.Y. 129, 49 N.E. 933, 40 L.R.A. 291, 63 Am.St.Rep. 650; Id., 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Hubbard v. Hubbard, 228 N.Y. 81, 126 N.E. 508; Krause v. Kra......
  • John Olmsted v. Daniel Olmsted
    • United States
    • U.S. Supreme Court
    • February 21, 1910
    ...273; Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 A. & E. Ann. Cas. 1; Atherton v. Atherton, 155 N. Y. 129, 40 L.R.A. 291, 63 Am. St. Rep. 650, 49 N. E. 933, 181 U. S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. It also puts its decision on the ground that the Michigan......
  • Aspinwall v. Aspinwall
    • United States
    • Nevada Supreme Court
    • October 9, 1916
    ... ... breached, as, for instance, where the husband has given cause ... for divorce (Atherton v. Atherton, 155 N.Y. 129, 49 ... N.E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650; Frary v ... Frary, 10 N.H. 61, 32 Am. Dec. 395; Buchholz v ... ...
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