Fairchild v. Fairchild

• Decision Date: 11 March 1896
• Citation: 34 A. 10,53 N.J.E. 678
• Parties: FAIRCHILD v. FAIRCHILD.
• Court: New Jersey Supreme Court

34 A. 10

53 N.J.E. 678

FAIRCHILD

v. FAIRCHILD.

Court of Errors and Appeals of New Jersey.

March 11, 1896.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by Nettie F. Fairchild against William G. Fairchild for maintenance. From a decree for complainant, defendant appeals. Reversed.

For former reports, see 11 Atl. 426, and 13 Atl. 599.

Leon Abbett, for appellant.

A. Walling, Jr., for appellee.

GUMMERE, J. This is an appeal from a decree of the court of chancery, on a bill for maintenance filed by the respondent against the appellant. The parties were married in the city of New York on August 10, 1885, and a few days afterwards the appellant left his wife, and removed to the state of Colorado, and, in December of the same year, went to Kansas, where he has ever since continued to reside. The respondent was at the time of her marriage, and still is, a resident of this state. On the 11th of March, 1887, the appellant obtained a decree of divorce from the respondent in the district court of Stafford county, in the state of Kansas. The respondent, however, was never within the jurisdiction of that court, nor was she served with process in the suit in which the decree was rendered, nor did she ever receive any notice of its pendency. In April, 1887, this suit was begun in the court of chancery, by the respondent, for the purpose of compelling her husband to maintain her, and, incidentally, to have the decree of the Kansas court declared null and void. In March, 1888, and while this suit was pending in the court of chancery, the appellant commenced another action against the respondent in the district court of Hodgeman county, Kan., for a divorce from her, and an annulment of their marriage. To this second Kansas suit the respondent appeared, and made defense; and on the 4th day of October, 1888, a final decree was entered in favor of the appellant, divorcing him from the respondent. In November, 1893, the appellant applied to the court of chancery to open the decree pro confesso which had been entered against him in this suit, and for leave to file an answer setting up the decree of the district court of Hodgeman county as a bar to the complainant's right to a decree. His application was granted, and an answer was filed by him, setting up the Kansas decree. On the final hearing of the cause, the court below found that the appellant had abandoned the respondent without justifiable cause; that he was not a bona fide resident of the state of Kansas, but that he went there solely for the purpose of instituting divorce proceedings against the respondent; and that neither the decree of divorce made by the district court of Stafford county, nor that made by the district court of Hodgeman county, was a bar to the suit; and granted the respondent the relief asked for.

So far as the decree of divorce which was granted by the Stafford county court is concerned, it is clear that it was without extraterritorial effect. The respondent was never within its jurisdiction. She was not served with process, nor was any notice of the pendency of the proceedings given to her, although her place of residence was known to the appellant. Under similar circumstances, a decree of divorce, pronounced by a circuit court of the state of Illinois, was refused recognition by this court in the case of Doughty v. Doughty, 28 N. J. Eq. 581. The decree of the district court of Hodgeman county, however, stands on a different footing. That court had jurisdiction over the parties; the respondent having voluntarily appeared, and made defense to the action brought against her there by the appellant. It also had jurisdiction, by virtue of the Kansas statute, which was offered in evidence, over the subject-matter of the suit. Counsel for the respondent contended before us that the court was without jurisdiction over the subject-matter of the litigation, because, at the time of its institution, the marriage relation no longer existed between the parties so far as the state of Kansas was concerned, it having already been dissolved by the decree of the Stafford county court. But this was a matter of defense, which should have been set up in the second Kansas suit, and cannot be considered in this action. So, too, the question of the bona fides of appellant's residence in Kansas, which was passed upon by the court of chancery, was one for the exclusive consideration of the Kansas court. By the statute of that state, the plaintiff in an action of divorce is required to have been an actual resident, in good faith, of the state, for one year next preceding the filing of his petition. It was therefore necessary for the Kansas...