Feickert v. Feickert

• Citation: 131 A. 576
• Parties: FEICKERT v. FEICKERT.
• Decision Date: 08 January 1926
• Court: New Jersey Court of Chancery

131 A. 576

FEICKERT

v. FEICKERT.

Court of Chancery of New Jersey.

Jan. 8, 1926.

(Syllabus by the Court.)

Suit by Lillian F. Feickert against Edward F. Feickert for divorce. On motion for an order of reference to the special master to take depositions and to bring on a hearing of the cause ex parte. Motion denied, and petitioner allowed 20 days to amend petition.

McCarter & English, of Newark, for petitioner.

WALKER, Ch. This is a suit for divorce for desertion. The petition was filed October 6, 1925. In it Mrs. Feickert alleges that she married the defendant, Edward F. Feickert, December 6, 1902; that he deserted her in December, 1922, ever since which time, and for more than two years then last past he had willfully, continuedly, and obstinately deserted her; that she had been a bona fide resident of New Jersey continuously since the marriage, and had no means of support except from her own exertions. She prayed that the marriage between her and the defendant might be dissolved for the cause aforesaid, and the defendant compelled, by the decree of this court, to support her. The citation, tested October 8, and returnable October 19, 1925, was returned non est by the sheriff of Union county, who stated in the affidavit annexed that he had been credibly informed and verily believed that the defendant, Edward F. Feickert, was then resident in Reno, Nev. In obedience to the rules of the court, Mrs. Feickert and Mr. English, who is of counsel for her, made affidavits for the purpose of securing an order of publication.

Mrs. Feickert swore that her husband was not then, and for several months last past had not been, resident within the state of New Jersey; that she had addressed a letter to his sister, Mrs. F. H. Hawkins, of Plainfield, this state, requesting her to tell deponent the residence and post office address of the defendant, to which Mrs. Hawkins replied that the last address (of defendant) known to her was 429 South Virginia street, Reno, Nev.; that she knew of her own knowledge that the defendant had gone to Reno, Nev., because he had instituted a suit against her in the Second judicial district court of that state, county of Washoe, the summons in which was dated December 29, 1925.

Mr. English swore that he was a member of the firm who were solicitors of the petitioner; that prior to filing the petition Mrs. Feickert exhibited to him a copy of the summons and complaint in the suit brought by her husband against her in the Second judicial district court of the state of Nevada, county of Washoe; that the name of the attorneys for the plaintiff in that suit, who is the defendant here, was given on the summons and complaint as Price & Hawkins; that thereafter he wrote to Messrs. Price and Hawkins, stating that his firm represented Mrs. Feickert, who had filed a petition for divorce in the Court of Chancery of New Jersey against Mr. Feickert, and, understanding that they represented Mr. Feickert in a similar proceeding in Nevada, they requested information as to the address of Mr. Feickert so that they might serve him with copies of the papers, the object of the inquiry being to give Mr. Feickert notice of this suit so that he might appear and defend, to which they replied that Mr. Feickert's address was Yori Apartments, South Virginia street, Reno, Nev., he being then presently absent from Reno, but they understood was expected back shortly.

On October 29th an order of publication was moved for and made, requiring Mr. Feickert to answer Mrs. Feickert's petition on or before December 30th, or in default thereof such decree would be made against him as the Chancellor should think equitable and just; and it was further ordered that notice of the order, prescribed by law and the rules of this court, should, within 20 days thereafter, be published, and that a copy of the petition and of the order as service substituted for personal service of process within this state, be made upon the defendant as prescribed by the rules of this court. This was done, as appears by the proofs of publication and service filed in the cause; Mr. Feickert being served personally with a copy of the petition and certified copy of the order of publication on November 14, 1925, at the office of his attorneys, Messrs. Price and Hawkins, in Reno, Washoe county, Nev. The defendant's time for answering expired December 30, 1925, and, he having defaulted in pleading, petitioner's counsel now moves for an order of reference to a special master to take depositions and other evidence to substantiate and prove the allegations in the petition, and to bring on the hearing of the cause ex parte. This order will be denied, at least at this time, for reasons hereafter to be stated.

The parties to this suit are prominent people, Mr. Feickert in banking, and Mrs. Feickert in political circles. Consequently their matrimonial infelicities have received considerable newspaper notoriety at various times. With the knowledge that has come to me through newspaper articles and that obtained from the; affidavits filed in this cause, I cannot shut my eyes to the fact that the defendant in this cause, Mr. Feickert, has obtained a divorce from his wife, the petitioner, in the state of Nevada. Current newspaper reports, which are doubtless true, are to the effect that Mr. Feickert (undoubtedly relying upon his foreign decree and the validity of it) has contracted another marriage.

Mrs. Feickert assumes to treat the Nevada proceedings and decree as invalid. I am not permitted to indulge any such presumption. In law, the presumption is the other way. If they are invalid, it is because they are fraudulent, and fraud is never presumed bat always has to be strictly proved.

Mr. Feickert, through confidence in the integrity of his Nevada decree, or perhaps indifferent to it, has failed and neglected to answer in this suit and assert its validity as a bar to his wife's proceeding. The Divorce Act (P. L. 1907, p. 474), § 18, provides that in all uncontested causes where the court may deem it necessary or proper, a disinterested solicitor may be assigned by the court actively to defend the case. Now, I would do less than my duty if I did not see to it either that the petitioner amends her petition, alleging the Nevada divorce and pleading its invalidity, or appoint a solicitor actively to defend.

In ordinary cases the parties, being sui juris, must protect themselves and defend their own interests. In re Shreve, 87 N. J. Eq. 7, 103 A. 683, affirmed, 87 N. J. Eq. 710, 103 A. 683, but divorce cases, being sui generis, the public is a party to them, whose rights are represented and protected by the court. And, as the law favors marriage and disfavors divorce, it is the policy of the law, legislative as well as judicial, that all proper defenses be made or compelled. See Grant v. Grant, 84 N. J. Eq. 81, 92 A. 791; Divorce Act, § 18, supra. Now, in the language of the law, "I am credibly informed and verily believe" that Mr. Feickert has obtained a divorce in the state of Nevada, and that it is presumably valid. Of course it may be overcome for fraud. I am therefore constrained to insist that that divorce shall be pleaded and successfully attacked as invalid, before a final decree can be made in this case in favor of the peti

In Magowan v. Magowan, 57 N. J. Eq. 195, 39 A. 364, Vice Chancellor Reed held that a divorced wife cannot maintain an action for maintenance against her former husband; and of course a divorced wife cannot maintain an action for divorce against her former husband. In this same Magowan Case on...