Hess v. Kimble

• Decision Date: 27 October 1911
• Parties: HESS v. KIMBLE
• Court: New Jersey Court of Chancery

81 A. 363

79 N.J.E. 454

HESS

v. KIMBLE

Court of Chancery of New Jersey.

Oct. 27, 1911.

Petition by William H. Hess, Jr., by his next friend, against Madaline Kimble, for annulment of marriage. Dismissed.

The petition in this case is filed in behalf of William H. Hess, Jr., a minor, by his next friend, to annul his marriage to defendant on the ground that he was under the age of 18 at the time of said marriage, and that he has not, since arriving at that age, confirmed the marriage.

The petition is filed under the divorce and annulment act of 1907 (P. L. 1907, p. 474), which act provides that a decree of nullity of marriage may be rendered "at the suit of the husband when he was under the age of 18 at the time of the marriage, unless such marriage be confirmed by him after arriving at such age."

At the final hearing, the evidence fully established the facts that petitioner and defendant were married on February 19, 1910, at Camden, N. J., at which time petitioner was between 16 and 17 years of age (the date of his birth being April 27, 1893), and that the marriage has not been confirmed by petitioner since arriving at the age of 18 years. The petitioner, therefore, is entitled to a decree of nullity, provided this court has jurisdiction.

The jurisdictional provisions of this statute are: "For purposes of annulment of marriage jurisdiction may be acquired by personal service Of process upon the defendant within this state when either party is a bona fide resident of this state at the time of the commencement of the action."

The evidence discloses that at the time of the marriage ceremony petitioner and defendant resided with their respective parents in the city of Philadelphia, Pa., in which city the respective parents were domiciled; that petitioner and defendant went to Camden, N. J., on February 19, 1910, and were there married on that day, and at once returned to the homes of their respective parents in Philadelphia; that they did not acquaint their parents with the fact of their marriage until about one week later, when they disclosed that they were married, and that defendant was pregnant; that between the day of the marriage and the day their marriage was disclosed petitioner called upon defendant in the evenings at the home of her parents and enjoyed matrimonial intercourse with her; that during the week following the disclosure of the marriage great consternation existed in the respective families of petitioner and defendant touching the course to be pursued, the parents of petitioner refusing to permit petitioner to receive defendant as his wife, and the parents of defendant insisting that their daughter should be permitted to enjoy her matrimonial rights, and threatening litigation in her behalf; that under these conditions the father of petitioner sent him to Belmar, N. J., where he has since boarded with relatives. The date of petitioner's departure from Philadelphia, Pa., to Belmar, N. J., was March 9, 1910. The date of the filing of the petition for annulment was March 26, 1910. At the time petitioner went to Belmar, he was less than 17 years of age, and entirely without funds. He has remained there until this time, and has been employed a portion of the time, and has applied his earnings to the payment of his board. From time to time it has become necessary for his father to contribute money for the payment of petitioner's board.

It is claimed, in behalf of petitioner, that his primary reason for going to Belmar was his ill health.

John H. Switzer, for petitioner.

J. Fithian Tatem, for defendant.

LEAMING, V. C. (after stating the facts as above). I am entirely satisfied that this court is without jurisdiction to entertain the petition filed in this suit, for the reason that neither petitioner nor defendant was a bona fide resident of this state at the time the petition was filed.

The term "resident," used in the several successive legislative acts of this state which confer jurisdiction on this court in suits for divorce and annulment of marriage, has been uniformly recognized as including not only the factum of residence, but also the animus manendi; the residence required by our statute is the equivalent of domicile. Williams v. Williams, 78 Atl. 693; Coddington v. Coddington, ...