Edwards v. Edwards, M--2374

• Decision Date: 25 May 1950
• Docket Number: No. M--2374,M--2374
• Citation: 8 N.J.Super. 547,73 A.2d 759
• Parties: EDWARDS v. EDWARDS et al.
• Court: New Jersey Superior Court

Page 547

8 N.J.Super. 547

73 A.2d 759

EDWARDS v. EDWARDS et al.

No. M--2374.

Superior Court of New Jersey Chancery Division.

May 25, 1950.

John H. Jobes, Jersey City, for plaintiff.

McCarter, English & Studer, Newark (James R. E. Ozias, Newark, of counsel), for defendant, Jean B. Edwards, appearing solely and especially on a motion that service of the summons and complaint be set aside and that the complaint be dismissed.

HEGARTY, A.M.

The facts material to the decision of the questions presently raised as set forth by affidavit and substantially undisputed are as follows: Plaintiff, Ray C. Edwards, and defendant, Jean B. Edwards, a native of California where her family still resides, were married in San Francisco in 1939. In 1942, they established their home in Glen Rock, New Jersey, and are the parents of three children, additional defendants. In November, 1949, Mrs. Edwards, taking with her the children, left her husband and went to California, and she and the children reside in the City of Santa Barbara, in that State. It may be noted in addition that Mrs. Edwards alleged by way of affidavit that she is a chiropodist licensed under the laws of California and is practicing her vocation there.

Defendant, on December 22, 1949 commenced in the Superior Court of California an action for separate maintenance, division of community property, custody and support of the children against the plaintiff. The papers in this action together with an order to show cause relating to support, maintenance, counsel fees pendente lite, were served upon the plaintiff in New Jersey in April of this year. Meanwhile the plaintiff had commenced an action in this court for custody of the children and to restrain his wife from proceeding with the California action. Personal service was had in California. Defendant now moves for an order setting aside the service of process and dismissing the complaint on the grounds that: process was not served within New Jersey; personal jurisdiction of the defendant is lacking; and that the court lacked jurisdiction over the subject matter in that the defendant and the children do not reside in New Jersey and have not been personally served here. Essentially two questions are raised: (1) the court's jurisdiction to decide the issue of custody; and (2) the court's jurisdiction to restrain the defendant's California action.

On the question of custody: R.S. 9:2--3, N.J.S.A., provides: 'when the parents of minor children live separately * * * the Superior Court, upon complaint of either parent, shall have the same power to make judgments or orders concerning their * * * custody * * * as concerning children whose parents are divorced.'

However, the power cannot be exercised unless the court has jurisdiction.

The state of domicil of the child can change the custody of the child from one parent to the other or to or from both.'

Restatement, Conflict of Laws, section 145, and see section 117. Domicil of the child as opposed to his actual residence is at least an alternate ground for the court's decision in Pieretti v. Pieretti, 176 A. 589, 13 N.J.Misc. 98 (1935), to determine the question of custody. See, In re Williams, 77 N.J.Eq. 478, 482, 77 A. 350, 353, 79 A. 686 (1910); Heard v. Heard, 323 Mass. 357, 82 N.E.2d 219 (1948). Conley v. Conley, 324 Mass. 530, 87 N.E.2d 153 (1949).

The question thus becomes--where is the children's domicil? It is stated in the Restatement, Conflict of Laws, Section 30; that: '* * * a minor child has the same domicil as that of its father.' Also, Pieretti v. Pieretti, 176 A. 589, 13 N.J.Misc. 98, 102 (1935); See, Rinaldi v. Rinaldi, 94 N.J.Eq. 14, 118 A. 685 (1922). Although it may be admitted that the mother can establish a separate domicil, Shepherd v. Ward, 6 N.J.Super. 130, 70 A.2d 502 (1950), and it may be assumed arguendo that she has done so, the fact that the...