Gould v. Gould

• Citation: 138 N.E. 490,235 N.Y. 14
• Parties: GOULD v. GOULD.
• Decision Date: 30 January 1923
• Court: New York Court of Appeals

235 N.Y. 14

138 N.E. 490

GOULD

v.GOULD.

Court of Appeals of New York.

Jan. 30, 1923.

Action by Edith Kelly Gould against Frank J. Gould. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (201 App. Div. 670,194 N. Y. Supp. 745), unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for judgment on the pleadings and directing a dismissal of the complaint, the plaintiff appeals by permission.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Almet F. Jenks, Gustavus A. Rogers, and Gardiner Conroy, all of New York City, and Harry L. Kruger, for appellant.

Samuel Seabury and Walter B. Walker, both of New York City, for respondent.

HOGAN, J.

This action was commenced by plaintiff April 23, 1920, for an absolute divorce upon the usual statutory grounds. Defendant by his answer in the action denied the charges of misconduct made against him in the complaint, and set forth several separate and affirmative defenses. Pursuant to an order of the court the plaintiff served a reply to the second and sixth separate defenses. Thereupon defendant moved for judgment on the pleadings, which motion was granted and the complaint dismissed on the merits upon the ground that the plaintiff herein was not, at the time of the commencement of this action, the wife of the defendant. Judgment upon the order so made was thereafter entered, and upon appeal therefrom the same was unanimously affirmed by the Appellate Division, and permission to appeal to this court granted.

The pleadings in this action disclose the following uncontroverted facts:

Plaintiff and defendant were married at Edinburgh, Scotland, in October, 1910, and thereafter from time to time lived in the city of New York down to some time in the year 1913, when they departed from the United States and thereafter did not dwell as husband and wife in the city of New York, but did dwell in the republic of France, the defendant continuously, the plaintiff until the summer of 1919, when she went to England and took up her residence there. Since that time she has been in the United States but once. In October, 1919, she came here and remained until early in December, when, after verifying the complaint in this action, she departed from the United States, and has since absented herself therefrom.

The Civil Tribunal of Versailles, Department of Seine-et-Oise, Republic of France, is a court of record of original jurisdiction, competent under the laws of the republic of France to render judgments divorcing husband and wife on the ground of adultery.

September 12, 1918, the plaintiff commenced an action in the Civil Tribunal of Versailles, France, for an absolute divorce. In the petition filed by her she alleged that she was of English nationality, that she had been married to defendant in Scotland without antenuptial contract, that immediately after the marriage she and defendant came to reside permanently in France, and then alleged acts of misconduct of defendant to entitle her to an absolute divorce. She also asked that defendant be summoned for the purpose of an attempt at reconciliation, as required by French law. Thereupon in the regular course prescribed by French law she made a petition for divorce, asked that she be authorized to pursue the proceedings commenced by her until a final judgment should be taken, to withdraw the suspension of the running of all periods of time, to authorize the execution of all intermediate judgments, and to authorize her to follow up the proceedings until a decision on the merits could be had, etc. On October 4, 1918, such order was made by the French court. Thereafter, on October 11, 1918, plaintiff took judgment of nonconciliation and was awarded alimony of 3,000 francs per month. Dissatisfied with such allowance, on the 18th day of October, 1918, she took an appeal from that part of the judgment which limited the amount of such alimony. In accordance with the rights conferred upon her by the French law relating to community property, seals were placed upon certain personal property belonging to the defendant in his home and office in France. Defendant was notified that an inventory of the property so sealed was to be taken. On the 15th day of November, 1918, said seals were removed by reason of plaintiff's failure to proceed with her action within 20 days, as required by French law, from which order raising the seals an appeal was also taken by plaintiff to the Court of Appeals at Paris, France. On the hearing of such appeals plaintiff did not appear in support thereof. The time for plaintiff to proceed in such action has not expired under French law. Defendant asserts that plaintiff is thereby estopped from maintaining this action.

In November, 1918, some time within two months after the plaintiff had commenced her action as stated, the defendant commenced an action in the Civil Tribunal of Versailles, the same court in which the action as stated was brought by plaintiff, wherein the defendant here, plaintiff in said action, sought an absolute divorce from plaintiff here upon the ground of her adultery. This plaintiff as such defendant in that action defaulted, and on April 16, 1919, the Civil Tribunal adjudged and determined that this plaintiff had committed adultery in the city of Paris, as alleged by her husband, this defendant, and for such fault on the part of the wife, this plaintiff, that the marriage of plaintiff and defendant should be dissolved. The judgment entered recited that plaintiff here had been caught in the act of adultery with one Cassasus, as charged against her on September 3, 1918, in the city of Paris, and had admitted she had been living with him maritally for about four months past, and--

‘Whereas, the spouses Goulds are both of American nationality, the husband by birth, the wife in consequence of her marriage, that under these circumstances, it being a question of the state, their national law must be applied;

‘Whereas, under the laws, customs, and jurisprudence of the state of New York, from which the plaintiff, Gould, comes, that in that state, adultery which may be established by all means of proof, is a cause for divorce:

‘Pronounces the immediate divorce between the spouses Gould on the petition and in favor of the husband.’

Thereafter, on June 16, 1919, the plaintiff here demanded and was accorded as of right under the laws of France a new trial of all issues of law and fact involved in the action brought against her by this defendant, including the charge of adultery.

Upon the new trial before the Civil Tribunal, this plaintiff first raised the question of the competency of the court to entertain such action and render a judgment, as plaintiff's husband had on various occasions pleaded he was domiciled in New York, and had only a temporary residence in France, and asking, in case such plea of competency of the court was disallowed, that she be allowed to deny the facts alleged by Mr. Gould, reserving the right to make a cross-demand and all incidents which she should deem advisable. In addition she duly appeared and interposed defenses on the merits to such action, and asked affirmative relief therein against this defendant.

Upon the issue thus joined a trial de novo was had, and judgment on the merits was rendered by the Civil Tribunal December 9, 1919, in favor of this defendant, adjudging, amongst other decrees, that this plaintiff had committed adultery as charged by the husband, and that the judgment theretofore rendered, divorcing the defendant herein for the fault of plaintiff herein, should have full force and effect. The decision of the court recited that the competence of French courts as between foreigners is optional, the parties having the right to decline their jurisdiction and the courts having the power to refuse to adjudicate, and that ‘Whereas, by reason of the nature of the matter, such action being based on adultery committed in France, it is not proper for the tribunal to declare itself incompetent;’ that Mrs. Gould had not raised her objection at the proper time; that she had notice of the proceedings, and did not allege lack of knowledge thereof; that she had theretofore commenced an action for divorce against this defendant in the French courts, same tribunal. It then proceeded on the merits, stating that, plaintiff having confined herself to a denial of the facts which led to the judgment of default, and it having been conclusively established by the proces-verbal of police that she had been caught in the act of adultery alleged by her husband, and had admitted she was living with the corespondent as husband and wife, she must be nonsuited, as her opposition was unfounded.

From such judgment plaintiff took an appeal to the Court of Appeals of Paris, in which all the questions raised, including the power and jurisdiction of the Court of Civil Tribunal, were presented and argued; also that plaintiff had not proceeded in her French action by reason of the fact that, in various hearings for the affixation and raising of the seals on defendant's property, the latter claimed his comicile to be in America and his domicile and status as an American citizen, and that she ‘had brought her demand before the competent courts of the United States.’ The Court of Appeals of Paris, after reciting all the facts and argument of counsel, held that the position taken by plaintiff was inconsistent with the conclusions by which she denies the competency of the French judges, that by first beginning herself a divorce proceeding against her husband before the Court of Versailles she manifested her intention to put herself under French jurisdiction; that she had persisted in that intention when her husband brought suit against her by safeguarding by formal reservations her right to renew in the form of a counter suit her own divorce case; that she...