David-Zieseniss v. Zieseniss

• Decision Date: 17 March 1954
• Citation: David-Zieseniss v. Zieseniss, 205 Misc. 836, 129 N.Y.S.2d 649 (N.Y. Sup. Ct. 1954)
• Parties: Claude B. David-Zieseniss, Plaintiff,<BR>v.<BR>Charles O. Zieseniss, Defendant.
• Court: New York Supreme Court

205 Misc. 836

Claude B. David-Zieseniss, Plaintiff,

v.Charles O. Zieseniss, Defendant.

March 17, 1954.

Alexis Coudert and A. Michael Frothingham for defendant.

Leroy E. Rodman for plaintiff.

WALTER, J.

The complaint in this action for divorce alleges that the parties were married in New York on or about June 27, 1940, and lived together in New York for several years thereafter, and that defendant (husband) committed adultery in France in 1948, 1949, 1950, 1951, and 1953. The summons was served by publication pursuant to an order made October 21, 1953, upon the complaint and an affidavit by plaintiff in which she stated that defendant is either not a resident of New York or if a resident has been continuously without the State for more than six months and cannot be served within the State but may be found and served at 32 Boulevard Suchit, Paris, France.

On October 21, 1953, another order was made sequestrating the property of defendant within the State and appointing a receiver thereof.

Defendant moves to vacate both orders, to set aside the alleged service of the summons made thereunder, and to dismiss the complaint, upon the ground that the court has no jurisdiction of the subject of the action.

The complaint contains the further allegation, upon information and belief, that defendant regards both plaintiff and himself as having been resident in New York at the times of the commission of the acts of adultery set forth in the complaint. That, however, quite obviously is not an allegation that either party was a resident of New York when the offense was committed; and as there is no allegation of that fact or any allegation that either party is now a resident of New York, the court's jurisdiction rests solely upon the fact that the parties were married in New York and lived here together for several years.

Section 1147 of the Civil Practice Act contains the specific and express provision that a husband or wife may maintain an action against the other party to the marriage to procure a judgment divorcing the parties by reason of the defendant's adultery "where the parties were married within this state." (Emphasis supplied.)

Defendant nevertheless makes a twofold argument. First, he asserts that that provision does not mean what it says; and second, he asserts that if the provision be construed as meaning what it says, then it is unconstitutional. Defendant does not say, however, what provision of what constitution he claims is violated, beyond the very general statement that if interpreted as meaning that divorce jurisdiction may be grounded on the fact that the parties were married in this State when both parties reside or are domiciled elsewhere at the time of the commencement of the action, the statute "would violate the Constitution of the United States".

Some apparent support for the first branch of defendant's argument will be found in statements in the opinions in Gray v. Gray (143 N.Y. 354, 357); Powell v. Powell (211 App. Div. 750, 757); Barber v. Barber (89 Misc. 519) and Huneker v. Huneker (57 N. Y. S. 2d 99, 100), in which able and distinguished judges have expressed difficulty in believing that the Legislature has enacted something contrary to what they thought should be enacted, or a difficulty in accepting the Legislature's enactment as a real expression of the public policy of the State.

But I discover no holding that the statute does not mean what it says, and neither do I discover any reason for doubting that the language "where the parties were married within this State" is a perfectly clear, unambiguous, and unmistakable expression that the Legislature means that marriage in this State is enough to give the courts of this State jurisdiction of an action for divorce and that that consequently is the public policy of this State. Becker v. Becker (58 App. Div. 374) holds that the fact of marriage in this State gives jurisdiction of an action to annul that marriage, and the necessary implication is, I think, that that fact likewise gives jurisdiction of an action for divorce. (See, also, Schildkraut v. Schildkraut, 226 App. Div. 747, and Ackerman v. Ackerman, 200 N.Y. 72, 76.)

I think, too, that that view is reinforced and required by the history of the statute.

In 1787, it was enacted that the Chancellor might grant divorces "where the parties are inhabitants of this State" (L. 1787, ch. 69).

In 1813, it was enacted that the Chancellor might entertain bills for divorce, first, where the parties were inhabitants of this State at the time of the adultery, second, when the marriage was solemnized in New York and the injured party was a resident in this State both at the time of the adultery and when he or she brought the proceedings. (2 Van Ness & Woodworth, Rev. L. [1813], ch. 102, p. 197.)

The Revised Statutes of 1830 contained the provision that a divorce might be decreed in New York "Where the marriage has been solemnized, or has taken place within this state, and the injured party, at the time of the commission of the offense, and at the time of exhibiting the bill of complaint, shall be an actual inhabitant of this state" (Rev. Stat. of N. Y., part II, ch. VIII, tit. I, art. third, § 38).

It was then by chapter 246 of the Laws of 1862, that that provision of the Revised Statutes was amended to read "Where the marriage has been solemnized or has taken place within this state, or where the injured party at the time of the commission of the offense and at the time of exhibiting the bill of complaint shall be an actual inhabitant of this state."

Marriage within the State as a fact conferring jurisdiction to grant divorce thus was not introduced into the law by chapter 246 of the Laws of 1862. Marriage within the State coupled with residence within the State was a ground for jurisdiction from 1813 to 1862, and the sole purpose of the 1862 amendment was to make marriage within the State, without the additional fact of residence within the State, a fact which in and of itself, without more, conferred jurisdiction. Chapter 69 of the Laws of 1787, and chapter 246 of the Laws of 1862, were repealed by chapter 65 of the Laws of 1909, but by that time the provision that mere marriage within the State, without residence here, gives jurisdiction to grant divorce had been carried into the Code of Civil Procedure (§ 1756), which was then carried into and is now contained in section 1147 of the Civil Practice Act.

Continuously since 1862, therefore, it has been the statutory law of New York that marriage within the State is, in and of itself and without more, a fact which gives jurisdiction to grant divorce.

Now, over ninety years later, it is seriously contended, apparently for the first time, that the statute conferring such jurisdiction is unconstitutional.

The great length of time the statute has stood upon the books without challenge to its constitutionality is of itself a strong argument against the challenge (Ownbey v. Morgan, 256 U. S. 94; Coler v. Corn Exch. Bank, 250 N.Y. 136, affd. sub nom. Corn Exch. Bank v. Commissioner, 280 U. S. 218); but in addition to that, the whole subject of domestic relations is left by the United States Constitution entirely to the States (Matter of Burrus, 136 U. S. 586, 593, 594; Popovici v. Agler, 280 U. S. 379, 383; Williams v. North Carolina, 325 U. S. 226, 233) and I hence do not see how any State statute regulating the jurisdiction of State courts over domestic relations even could be thought to violate the Federal Constitution (see Gasquet v. Lapeyre, 242 U. S. 367, 369; Iowa Central Ry. v. Iowa, 160 U. S. 389, and Missouri v. Lewis, 101 U. S. 22).

How jurisdiction over a particular defendant in a particular action is to be acquired is, of course, a different question — one which goes to the very heart of due process — and State statutes on that subject, of course, may and frequently do present many questions under the Constitution of the United States. For the moment I confine myself to the validity of a State statute which says that marriage within the State gives the courts of that State jurisdiction of a suit to dissolve that marriage. I will then consider separately whether the steps taken in this particular action are sufficient to give jurisdiction over the person of this defendant, although in the end I may find that the answer to the first question will dictate the answer to the second question.

In cases too numerous to mention the statement has been made that jurisdiction of divorce depends upon domicile. Text writers and commentators have repeated the statement; and even in sections 110 and 111 in the Restatement of Conflict of Laws it is said: "A state can exercise through its courts jurisdiction to dissolve the marriage of spouses both domiciled in the state" and "A state cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state."

Yet, I believe that in every case in which the statement was made, it was made in connection with the effect of the divorce decree in another jurisdiction or as an estoppel or in connection with the validity of service of process outside the State in which the action was brought. Not a single case has been found in which a statute giving jurisdiction on the ground that the marriage took place in the State where the action was brought was held invalid or even questioned. Neither have I discovered any case which mentions any provision of any Constitution which makes jurisdiction of divorce dependent upon domicile in the divorcing State or excludes marriage in the State as a permissible ground for jurisdiction.

As a generally accepted rule of conflict of laws (i.e., that body of principles which governs the choice of the law applicable to a given case) domicile of one of the spouses in a State gives that State jurisdiction of divorce; and in many reported cases there was no ground other than domicile upon which jurisdiction could rest. In such cases...