Dean v. Dean

• Decision Date: 24 November 1925
• Parties: DEAN v. DEAN.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 240

149 N.E. 844

DEAN

v.DEAN.

Court of Appeals of New York.

Nov. 24, 1925.

Action for divorce by Amelia Frieda Dean against Robert J. Dean. From a judgment of the Appellate Division of the Supreme Court (213 App. Div. 360, 210 N. Y. S. 695), affirming, by a divided court, a judgment of the Special Term for plaintiff, defendant appeals.

Affirmed.

Lehman, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth department.

Ray M. Stanley and O. Clyde Joslin, both of Buffalo, for appellant.

Alfred L. Harrison and J. H. Madden, both of Buffalo, for respondent.

CRANE, J.

The plaintiff and the defendant were residents and citizens of Ontario, Canada. Three children were born of the marriage; two now living. The husband left his wife and went to Pennsylvania. He failed and refused to support his family. Later he came to Buffalo. Thereupon the wife with her two children came to that city and sued him for divorce and support for herself and children. They were his children, and he was as much bound to support them in New York as he was in Canada. Stepping across the St. Lawrence river into the States did not change his obligations as a father. Our courts were open to the wife. She could maintain her action here in this state. Civil Practice Act, § 1147.

The husband set up as a defense that he had been divorced in the state of Pennsylvania.It is conceded that the Pennsylvania courts had no jurisdiction over the wife. She did not know of the action, and was not served by any process known to the law. In order to get the Pennsylvania courts to act, the husband falsified, stating that he did not know the whereabouts of the wife. The Pennsylvania decree of divorce would not be recognized in Canada, the domicile of the wife. King v. Brinkley, 14 Ontario Rep. 434. The husband could not go to Canada without being liable to support his wife and children. The wife comes to the state of New York, as it is the only place where she can get relief. The husband is here. He has kept out of Canada. It is conceded that, if the wife had been domiciled here, our courts would afford her relief; that we would not recognize the Pennsylvania decree obtained under the circumstances stated. Why should the fact that she was domiciled in Canada make any difference? The wife is still the wife of the defendant in Canada, and he is still her husband. His children remain his offspring here in New York, requiring food and shelter, just as they would in Canada. The policy of the state of New York, I venture to assert, is in the maintenance of marriage and morality. These will be aided by affording the wife relief in our courts rather than by turning her out, when we know that she can get help nowhere else. I know of no authority which holds that the general policy of this state limits its aid to its own citizens. In fact, I consider the case of Ball v. Cross, 231 N. Y. 329, 132 N. E. 106, as having settled the law for this case in favor of the maintenance of this action.

If there are any complications growing out of the husband's remarriage, he has brought them upon himself, and has not the law to blame.

The judgment should be affirmed, with costs.

CARDOZO, J.

Plaintiff and defendant were married in Ontario, Canada, and lived there together till February, 1919. The husband then left the matrimonial domicile, and abandoned his wife and children. He lived for a time in Buffalo, and later in Erie, Pa. While domiciled in Pennsylvania, he brought suit against his wife for divorce in the courts of that state, charging her with desertion. Upon the false statement that he did not know her whereabouts, he obtained an order for the service of process by publication. He was granted a judgment of divorce on November 5, 1923. Soon afterwards he came back to Buffalo, after having married again. The present plaintiff, his first wife, did not appear in the Pennsylvania divorce suit, and did not know that it was pending. She remained in Ontario until March, 1924, when she took up her home in Buffalo. She found her husband living with another woman, and sued him for divorce.

We have said that the husband abandoned his wife and children when he left the matrimonial domicile. There is evidence for the conclusion, and against it. The husband on his side maintained that the wife refused to follow him. The trial judge, weighing the probabilities, gave credence to the wife. It is true that in his decision he did not find the fact of abandonment in so many words. He stated it, however, in his opinion as his inference from the evidence. He found, moreover, in his decision that on November 5, 1923, the date of the Pennsylvania judgment, the wife was domiciled in Ontario. If the husband had not abandoned her, her domicile would have followed his. Reading the opinion and the decision together, we cannot doubt that, in the view of the trier of the facts, the husband was at fault. A finding of abandonment will therefore be implied. Ogden v. Alexander, 140 N. Y. 356, 362,35 N. E. 638.

[5] The situation then is this: The husband, after deserting his wife in the matrimonial domicile in Ontario, obtained, upon constructive service of process, a divorce in Pennsylvania. The full faith and credit clause of the Constitution of the United States (article 4, § 1) does not command us to accord recognition to a judgment so procured. Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1. The only question is whether comity or public policy, or, to put it differently, our own interpretation of the conflict of laws, should prompt us to concede a recognition that we are at liberty to refuse. We do not need to inquire what our conclusion would be if the issue of abandonment had been resolved in favor of the husband. In that event, the wife, though she remained in Ontario, would have been under a duty to live with her husband wherever he offered her a home. In the view of the law, his domicile would have been hers. A different problem would be before us for solution if it thus appeared that the Pennsylvania court, in decreeing a divorce, was adjudicating the status of parties whose domicile was there. Cf. Cheely v. Clayton, 110 U. S. 701, 705, 4 S. Ct. 328, 28 L. Ed. 298;Franklin v. Franklin, 190 Mass. 349, 77 N. E. 48,4 L. R. A. (N. S.) 145,5 Ann. Cas. 851; Loker v. Gerald, 517 Mass. 42, 45, 31 N. E. 709,16 L. R. A. 497, 34 Am. St. Rep. 252; and O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. 110, explained in Ball v. Cross, 231 N. Y. 329, 132 N. E. 106. We do not even have to forecast the decision that would be made if they had been living separate by consent. Cf. Winston v. Winston, 165 N. Y. 553, 555,59 N. E. 273. We confine ourselves to the facts as found. The wife, having been deserted by her husband, might maintain a domicile of her own (Williamson v. Osenton, 232 U. S. 619, 34 S. Ct. 442, 58 L. Ed. 758;Perkins v. Perkins, 225 Mass. 82, 113 N. E. 841, L. R. A. 1917B, 1028), and she chose to maintain one in Ontario, till later she changed it to New York. She has never consented that her husband acquire a home apart from her, nor barred herself by misconduct from objecting to his doing so. In these circumstances, the incapacity of the divorce decree of Pennsylvania to affect the status of the abandoned wife does not depend upon some local policy established by New York for the protection of citizens or residents. It does not have its origin in the need of preserving the domestic law against evasion by one spouse to the prejudice of the other. It results from the general principles that govern the extraterritorial recognition of jurisdiction in actions of divorce. Perkins v. Perkins, supra; Haddock v. Haddock, supra, at page 570 (26 S. Ct. 525); Ball v. Cross, supra.

We do not mean that these principles have validity as law, ex proprio vigore, irrespective of conflicting conceptions of expediency or justice. The policy behind them is always local in the sense that each state, aside from constitutional restrictions, may formulate its own conceptionfor itself. The like may be said of the conflict of laws generally. The conception of justice prevalent at home will override an opposing conception prevalent abroad, but the conception prevalent at home may exact justice to the stranger as well as justice to the resident. So we think it does. The wife, domiciled in Canada, and there abandoned by her husband, became by her marriage a party to a relation which the courts of Pennsylvania have attempted to destroy. They have done this, though there has been no submission to the jurisdiction by her, upon the basis of a domicile which the erring husband has wrongfully set up apart from her. We think the judgments of this court leave no escape from the conclusion that, according to the standards of justice prevalent among us, injustice would be done if that attempt were to prevail. This being so, the divorce decree of Pennsylvania ought not to be recognized as valid in New York, unless it would have been recognized as valid in the country in which the wife was domiciled at the time when the decree was made. Ball v. Cross, supra; Perkins v. Perkins, supra. If the courts of her domicile were satisfied, we might follow where they led. Armitage v. Attorney-General, 1906 P. 135; Ball v. Cross, supra. But Canada does not recognize the binding force of the decree. The law of Ontario to that effect was proved upon the trial. King v. Brinkley, 14 Ontario Rep. 434. We find nothing in our public policy to justify a holding that the wife, who remained a wife while she kept her domicile in Ontario, should be deemed to have ceased to be one when she changed her domicile to New York.

If there is need of other support for this conclusion, it is given by the husband's fraud. He obtained an order for the publication of the summons in local newspapers of Erie county, Pa., upon the false suggestion that the wife's whereabouts were unknown. The purpose as well as the...