Dunham v. Dunham

• Decision Date: 16 December 1913
• Parties: DUNHAM v. DUNHAM.
• Court: New Jersey Court of Chancery

89 A. 281

83 N.J.Eq. 396

DUNHAM

v. DUNHAM.

Court of Chancery of New Jersey.

Dec. 16, 1913.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Suit for divorce was brought by Henry P. Dunham against Bertha Florence Dunham, and defendant petitions to vacate final decree of divorce entered therein. Decree vacated.

James and Malcolm G. Buchanan, of Trenton, for defendant.

WALKER, C. This was a suit for divorce on the ground of the wife's adultery. She was personally served with process of citation, but failed to answer and defend, and the cause was referred to a special master to take proofs. The master reported and recommended the granting of a decree of divorce according to the prayer of the petition. On October 3, 1912, a decree nisi was entered, in which it was adjudged that the petitioner, Henry P. Dunham, and the defendant, Bertha Florence Dunham, "be divorced from the bond of matrimony for the cause aforesaid, and the said parties, and each of them, be freed and discharged from the obligations thereof, unless sufficient cause be shown to the court why this decree should not be made absolute within six months from the date hereof." On April 4, 1913, no cause being shown or appearing to the contrary, a final decree of divorce was made and filed in the cause, which adjudged that the decree nisi be made absolute, and that the parties, petitioner and defendant, be divorced from the bonds of matrimony and the marriage between them dissolved accordingly, and each of them freed and discharged from the obligations thereof.

On November 28, 1913, the defendant, by the name of Bertha Florence (Dunham) Myers, filed a petition herein, in which she alleged that she is the wife of Allan O. Myers, having been married to him on November 2, 1912; that previous thereto, and until the death of Henry P. Dunham, the original petitioner in this cause, she was his wife and the defendant in this cause. Her petition then recites the making of the decree nisi on October 3, 1912, and avers that the next day, October 4, 1912, the petitioner Henry P. Dunham died in the city and county of New York; that notwithstanding his death, a final decree of divorce in his favor against her was entered in this court in this cause on April 4, 1913. Her prayer is that the death of the original petitioner be suggested upon the record, the final decree of divorce vacated, and the petition therefor dismissed. Annexed to her petition is a copy of the will of Henry P. Dunham, filed and propounded for probate in the office of the surrpgate of New York county, and proof of the death of Dunham on the date mentioned. On filing the defendant's petition an order was made that the solicitor of the original petitioner, Henry P. Dunham, and also the persons named as executrix and executor of the paper writing propounded for probate as the last will and testament of Dunham in New York, and also his heirs and next of kin, naming them, appear and show cause before the chancellor, on a day therein mentioned, why the prayer of the petition should not be granted. Service upon the respondents, in the manner directed by the order to show cause, was made, but on the return day none of the respondents appeared, except the late petitioner's solicitor, who (no longer representing his deceased client) suggested, amicus curiae, that a final decree of divorce had relation back to the decree nisi, and cited Prole v. Soady, L. R. 3 Ch. App. 220, as authority.

It cannot be denied but that Prole v. Soady, supra, is an authority for the assertion that a final decree of divorce, following and based upon a decree nisi, when made, relates back to, and takes effect as and from, the date of the decree nisi. But that case is no authority for entering a final decree of divorce after the death of one of the parties to the suit because of the fact that a decree nisi had been made during their joint lives. The adjudications which I have examined are all to the contrary. In the later English case of Norman v. Villars, 2 Ex. Div. 359, Bret, L. J., referring to Prole v. Soady, remarked that the decree relates back to the decree nisi only when the latter is made absolute.

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