Felt v. Felt

• Decision Date: 22 December 1899
• Citation: Felt v. Felt, 49 A. 1071, 59 N.J.E. 606 (N.J. 1899)
• Parties: FELT v. FELT.
• Writing for the Court: MAGIE, C. J.
• Court: New Jersey Supreme Court

49 A. 1071

59 N.J.E. 606

FELT

v. FELT.

Court of Errors and Appeals of New Jersey.

Dec. 22, 1899.

Dissenting opinion.

For majority opinion, see 45 Atl. 105.

MAGIE, C. J. I find myself unable to concur in the affirmance of the decree in this cause, and deem it my duty to briefly state the reasons which impel me to dissent from the decision of the learned vice chancellor who advised the decree, and the views of so large a majority of my associates in this court who approved his decision. If the adjudication of the court of the territory of Utah, to which effect is given by the decree, was one affecting the personal rights and obligations of Mrs. Felt, against whom it was made, it is indisputable that it was not an adjudication which we are compelled to recognize by the imperative provision of the constitution of the United States, because she was neither served with process within the jurisdiction of that court, nor did she appear in the proceedings. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. But the contention is twofold, viz.: First that the adjudication in question was one affecting, not personal rights or liabilities, but a status or res,—the marriage relation between the parties,—and that in such a case jurisdiction to adjudicate is acquired by substituted or constructive service by publication, or the like, pursuant to the law of the forum, and that an adjudication in respect to such status, after jurisdiction has been thus acquired, will be one which the constitution of the United States requires other states to recognize and accept; or, second, if that is not so, that in such a case, when the substituted or constructive notice provided for by the law of the forum is supplemented by actual notice to the party against whom relief is sought in time to give opportunity to appear and contest, an adjudication made thereon, although the notice was given in another state, and the party has not appeared, must be recognized in this state on grounds of interstate comity. I am unable to discover from the opinion below whether the learned vice chancellor rested his conclusion upon the first argument or the second, but I do not deem either of them sound or supportable. The theory that an action for divorce is in all cases a mere action in rem is in my judgment a misconception. When both parties are domiciled in the jurisdiction in which the action is brought, it resembles an action in rem, because the status or condition which it attacks is wholly within that jurisdiction; but where the parties are domiciled in different states, the status is not exclusively within the jurisdiction of the courts of one domicile. Marriage undoubtedly creates a status by means of a contract entered into between husband and wife, under the sanction of the state. Unlike other contracts this may not be rescinded or abrogated by the consent of the parties, hut only in a mode or by judicial proceedings, also sanctioned by the state. There is, therefore, an interest in the preservation or the rescission of the marital contract, and the status which was created by it, not only in the parties who contracted, but in the state in which they are domiciled. If the parties have acquired different domiciles, an interest of each state in the preservation or destruction of the marital status exists. While it may be conceded that a husband, acquiring in good faith, as in this case, a different domicile from that of his wife, may appeal to the courts of his domicile, and obtain such relief as its laws afford, yet it does not follow that the adjudication giving such relief will properly operate upon the marital contract and status in respect to either the state of the wife's domicile or the wife herself. If a divorce proceeding bears in any case a resemblance to a proceeding in rem, the analogy fails when the husband and wife have different domiciles, because the rem is not wholly within the jurisdiction in which the husband seeks relief, but exists, also, in the place of the wife's domicile, in which she has a status as a married woman, under the protection of the state. As to that the court of the husband's domicile acquires no jurisdiction, and its adjudication cannot claim any extraterritorial effect within the constitutional provision. In the view thus expressed I have the support of the decisions of courts of the highest authority. Beginning with the masterly discussion of the subject by Judge Folger, in People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274, the court of appeals of New York in many successive cases have maintained the doctrine I contend for. O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. 110; Jones v. Jones, 108 N. Y. 415, 15 N. E. 707; De Meli v. De Meli, 120 N. Y. 485, 24 N. E. 996; Williams v. Williams, 130 N. Y. 193, 29 N. E. 98; In re Kimball, 155 N. Y. 62, 49 N. E. 331. Like views are expressed by the courts of Massachusetts, North Carolina, and Pennsylvania. Inhabitants of Hanover v. Turner, 14 Mass. 227, 7 Am. Dec. 203; Lyon v. Lyon, 2 Gray, 307; Blackinton v. Blackinton, 141 Mass. 432, 5 N. E. 830; Irby v. Wilson, 1 Dev. & B. Eq. 568; Harris v. Hanrris, 115 N. C. 587, 20 S. E. 187; Arrington v. Arlington, 102 N. C. 491, 9 S. E. 200; Colvin v. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308, 1 Am. Rep. 414. The opposite view is maintained by other courts, and supported by authors of high repute. But for the reason above given, I think the jurisdiction of the courts of a foreign state to pronounce a definite judgment upon the status of a resident of this state, who has not been served with process or appeared to the action, cannot be admitted without an abandonment of fundamental principles. Nor can I perceive the least ground for a distinction between adjudications abrogating the marriage contract and dissolving the marital relation and adjudications respecting the incidental rights and duties which...