Lister v. Lister

• Decision Date: 03 January 1916
• Docket Number: No. 31/764.,31/764.
• Citation: 86 N.J.Eq. 30,97 A. 170
• Parties: LISTER v. LISTER.
• Court: New Jersey Court of Chancery

97 A. 170

86 N.J.Eq. 30

LISTER

v. LISTER.

No. 31/764.

Court of Chancery of New Jersey.

Jan. 3, 1916.

Suit by Minnie Lister against George T. Lister for maintenance under section 26 of the Divorce Act Heard on bill, answer, and proofs taken in open court, and decree for complainant.

John I. Weller, of Hoboken, for complainant. J. W. Rufus Besson, of Hoboken, for defendant.

STEVENSON, V. C. 1. There are two defenses and two only which are set up in the defendant's amended answer, or in any way suggested by the evidence, viz.: (1) That the defendant before the filing of the bill obtained an absolute divorce from complainant in the state of Nevada; and (2) that after this suit was brought in this court the defendant paid the complainant $400, which she agreed to receive "in full settlement of all claims."

2. I shall not undertake to discuss in detail the evidence pertinent to the controversy between the parties in relation to the defendant's Nevada divorce. That divorce, or attempted divorce, in my judgment was a perfectly plain case of gross fraud upon the laws of New Jersey, and also the laws of Nevada. The alleged divorce must be treated by the courts of the state of New Jersey as null and void on two grounds which will be hereinafter stated.

The couple were domiciled in New Jersey before their marriage, and after their marriage continued to be domiciled in this state until the month of January, 1908, when the defendant abandoned his wife and went to the state of Nevada, where he took up his abode in a hotel at Reno. About two days after the expiration of the necessary six months, he commenced a suit for an absolute divorce in the Nevada court against his wife, who remained in New Jersey, alleging as the ground for such divorce extreme cruelty inflicted upon him by her. Although the defendant's petition or complaint does not state where the alleged cruel acts were committed by his wife, the inference is absolute that such acts must have been committed in the state of New Jersey, so that the whole cause of action, whatever its nature might be, arose in the state of New Jersey. Extreme cruelty is not a ground for a decree of absolute divorce in New Jersey. The complainant, the defendant in the Nevada divorce action, was served with notice of the suit and a copy of the complaint in the state of New Jersey, and thereupon attorneys practicing in Nevada were retained to represent her in the suit. It is alleged on behalf of the complainant that the Nevada attorneys went beyond their instructions and appeared generally for the complainant and defended the suit; whereas, their retainer was limited in its character. There certainly is evidence which indicates that the complainant's interests were not wisely, if honestly, cared for in the Nevada suit; but in this case we must accept the proposition that the complainant, the defendant in the divorce suit, upon being served in New Jersey with full notice of the Nevada suit against her, voluntarily appeared by Nevada attorneys and defended the suit on the merits.

The divorce suit came to a final hearing three or four months after its commencement, and the decree of divorce was granted on December 19, 1908. Two days after the decree was granted, the defendant left the state of Nevada, met the woman in Colorado on whose account he deserted his wife, and went through a ceremony of marriage with her on the 24th day of December, 1908. The defendant has never returned to the state of Nevada, but has of late resided in the city of Chicago with his alleged new wife by whom he has had two children. The total period of the defendant's sojourn in the state of Nevada for the purpose of obtaining a divorce was not more than six days in excess of the statutory period of six months, and the period of a few months thereafter ending when the decree was obtained. No evidence, except the defendant's own testimony, was produced before this court to show that the defendant engaged bona fide in any business in the state of Nevada, or established any permanent relations with that state, or its business, and the testimony of the defendant himself on these subjects was exceedingly meager and altogether unsatisfactory. The following is part of his cross-examination:

"Q. You were going to stay there [in Nevada] all your life? A. Not necessarily. Q. You were going to make that your home? A. Yes, sir; for awhile until I got well."

The complainant is directly corroborated by two witnesses in her positive testimony that the defendant, shortly before he deserted his wife in New Jersey, offered her money to induce her to submit to a divorce, and threatened that if she did not consent he would go to another state and get a divorce from her. This testimony outweighs the defendant's uncorroborated denial.

Without stating further details, it is sufficient for present purposes to state the conclusion of fact that this is a typical case of a fraudulent Nevada divorce based upon a false representation of residence in that state, and the record indicates that practically no effort is made in the Nevada courts to expose and repel these emigrants from other states, who by fraud and perjury impose themselves upon the state of Nevada as bona fide residents, residents animo manendi.

3. The first ground upon which this Nevada divorce will be held void in New Jersey is based upon our law as it now exists, and as it existed prior to the enactment of the Divorce Act of 1907. It is, I think, the established law of this state that jurisdiction of a court to grant a divorce from the bond of matrimony cannot rest in the slightest degree upon the consent of either of the parties to the marriage, or of both of them. Any divorce granted by a court in a foreign state in which neither of the parties was a bona fide resident would, I think, be treated as void by the courts of New Jersey, even although neither of the parties was at any time a resident of this state. Of course, it is not necessary to lay down such an extreme proposition in this case, because the complainant was domiciled in New Jersey, the matrimonial domicile was here, and the defendant's pretended change of domicile and residence was a fraud and a sham.

A divorce suit is a suit in rem. The term "res" is one of somewhat wide content, and it embraces not only lands and chattels, but also the status of individuals as parent and child, husband and wife, guardian and ward, and also the status of an individual as a citizen and as a voter. The essential characteristic of an action in rem, I think, is to be found in the power of the state through the decree or judgment of its court to dispose of the subject-matter of the suit, the res, in accordance with the object of the suit, whether that subject-matter be physical property or the status of one or both of the parties litigant. See Amparo Mining Co. v. Fidelity Trust Co., 74 N. J. Eq. 197, 203, 71 Atl. 605. In actions in personam, judgments or decrees do not ipso facto accomplish the objects of the suits in which they are rendered. An execution follows which may be abortive, or proceedings may be taken to compel the defendant to do what he is directed to do by the decree, which proceedings may prove to be inefficacious. Suits for specific performance of contracts to convey real estate formerly were actions in personam, and the decree only operated upon the person and might never operate to give the complainant the relief which was awarded him by the decree. Subsequent legislation, however, has in many states made such a suit an action in rem or quasi in rem. At present, such suits, when brought in a foreign state where the land in question does not lie, are purely actions in personam, although if the land lay in the state where the suit was brought the action might be in rem or quasi in rem.

A decree of divorce operates immediately and absolutely upon the status of the suitor which is the res in the suit. No execution, attachment, or contempt proceedings are necessary in order to enforce the decree. From the very nature of the case, however, a decree of divorce by a court in Nevada, undertaking to dispose of the status in respect of marriage of spouses who are not resident in the state, would be a decree in the air. A husband and wife domiciled in New Jersey, while passing through the state of Nevada on a railroad train, certainly could not get off at Reno and immediately give a Nevada court jurisdiction to determine their status in respect of marriage, and dissolve their marriage, even if the Legislature of Nevada should undertake to give the courts of the state such extraordinary powers. An act of the Legislature of a state undertaking to divorce all married persons who pass through the state on a railroad train would never be recognized by courts of other states as having the slightest trace of validity apart from all objections to such legislative action arising from federal or state Constitutions. The state of Nevada is powerless by an act of its Legislature, or by a decree of its court, to fix the status of a man or woman as married or unmarried, when such man or woman is only transiently commorant within the borders of the state. The question whether a man is married, or is a citizen, or is a voter, cannot arise in the state of Nevada unless the man is a bona fide resident of the state, for the reason that it is of the nature of such a status that it pertains to individuals who are permanently located in the place where the status is to be recognized or denied. A spouse commorant in Nevada, but actually resident in New Jersey, has no more power as against the state of New Jersey to carry his status in respect of marriage, from the state of New Jersey into the state of Nevada, so as to subject such status to the power and control of the state of Nevada exercised through its court by an action quasi in rem, than he has to lift up a tract of land in New Jersey which he owns and transport it to the ...