Hachez v. Hachez

• Citation: 1 A.2d 845
• Decision Date: 17 October 1938
• Docket Number: No. 201.,201.
• Parties: HACHEZ v. HACHEZ.
• Court: United States State Supreme Court (New Jersey)

1 A.2d 845

HACHEZ

v. HACHEZ.

No. 201.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1938.

Appeal from Court of Chancery.

Proceeding on petition by America Hachez against Emil Hachez for custody of Maria Hachez, an infant. From an order denying defendant's motion to dismiss petition on ground of lack of jurisdiction, defendant appeals.

Affirmed.

Heine, Peer, Laird & Mahr, of Newark (M. Casewell Heine, of Newark, of counsel), for appellant.

Nathan A. Whitfield, of Montclair (Carmine Leo Calarco, of New York City, on the brief), for respondent.

HEHER, Justice.

The question for decision is whether the Chancellor had jurisdiction to entertain a petition for custody of Maria Hachez, an infant child (of the age of five years) of petitioner and defendant. The advisory master rejected defendant's challenge to the jurisdiction.

These are the allegations of fact made in the petition:

Petitioner, a native and inhabitant of the Republic of Cuba, was temporarily a "resident" of the Borough of the Bronx, in the city and state of New York. The infant child was the only issue of the marriage between her and defendant. She and defendant, a citizen of Germany, were married in Cuba. The matrimonial res was always there.

On April 14, 1937, by a final decree entered in a court of competent jurisdiction of Cuba, where both parties were then resident, in proceedings instituted by the petitioner herein and in which both parties appeared, the marriage was dissolved; and there was also incorporated in the decree, by mutual consent, a provision granting custody of the infant child to the petitioner herein, and reserving to defendant "the right to visit the said infant on Thursdays and Saturdays of each week from 2 to 6 in the afternoon, and also the right to choose a school where" the petitioner "was domiciled to send his infant daughter to." It was further therein provided that "no fixed residence of" the petitioner "was to be decreed nor was any allowance fixed for her maintenance or support," and that she was "to receive" from defendant "the sum of $30 for support and maintenance of the infant, * * * to be paid monthly."

On May 27, 1937, defendant, in the ostensible exercise of the right of visitation thus decreed, but in reality contriving to "conceal and hide" the infant from petitioner, and to deprive her of lawful custody, and ultimately to take the child without petitioner's knowledge or consent to Germany, received the child from petitioner, and shortly thereafter, accompanied by the child, boarded at the City of Havana an airplane bound for the airport in the City of Newark, in this State, designing, by the use of passports "falsely obtained," to embark on a steamship sailing for a German port on the following day. The purpose being discovered, the police authorities of Newark, at the request of police officers of Havana, took defendant and the child into custody upon the arrival of the airplane at the Newark airport.

Thereupon, and while defendant and the child were still in such custody, the petition herein was filed. It averred that the infant was being "forcibly and wrongfully restrained and detained" by defendant, and that it was defendant's intention, when released from custody (he and the infant were discharged on habeas corpus on June 1st ensuing), to take the child to Germany without delay, and thus to deprive petitioner of "her natural rights as the mother" of the infant, as well as those secured by the final decree of divorce. The child was then confined in the Parental Home of the County of Essex, wherein she was placed when defendant was taken into custody by the police on a charge of kidnapping the child. It prayed that defendant, "or any other person who may presently have its custody," be ordered "to produce the child," and that defendant be restrained, by writ of he exeat, "from quickly departing the jurisdiction" of the Court of Chancery, and directed to show cause why permanent custody of the child should not be awarded to petitioner, and why "such order should not be made with respect to" her "care and custody * * * as shall be to" her "welfare and happiness * * *, in accordance with" sections 6 and 7 of the act relating to minors (2 Comp.Stat. 1910, p. 2809; Pamph.L.1936, p. 776; Rev. Stat.1937, 9:2-1), and "such further and other relief" granted as may be deemed equitable and just. It was also alleged in the petition that, "by reason of the comity between nations", Chancery "should recognize the decree" of the Cuban court, "and give proper effect thereto."

An order was thereupon made directing the issuance of a writ of ne exeat republica against defendant, and requiring him to show cause why custody of the infant should not be awarded to petitioner, "in accordance with the statute in such case made and provided and in accordance with the decree entered in the Court at Havana, Cuba." Due service thereof having been made upon defendant, he filed a petition praying leave to enter a special appearance for the purpose of moving to set aside the service of the petition and rule to show cause, and to dismisss the petition, on the ground of lack of jurisdiction. It was therein alleged that he was "domiciled in Bremen, Germany, and has been involuntarily seized and detained in the State of New Jersey while en route to Bremen, Germany;" that petitioner herein "is domiciled in Havana Cuba, and is temporarily" in the City of New York; and that the infant "is domiciled in Bremen, Germany, and was with your petitioner when he was involuntarily seized and detained"...