Mayer v. Mayer
| Citation | 36 Del.Ch. 457,132 A.2d 617 |
| Parties | Kathryn C. MAYER, Plaintiff-Appellant, v. Arthur P. MAYER, Sr., Defendant-Appellee. |
| Decision Date | 06 June 1957 |
| Court | United States State Supreme Court of Delaware |
Appeal from the Court of Chancery of New Castle County.
Stephen E. Hamilton, Jr., Wilmington, for plaintiff-appellant.
Joseph H. Flanzer, Wilmington, for defendant-appellee.
The facts giving rise to this controversy and ultimately to this appeal are as follows:
On March 2, 1946, the plaintiff and defendant were married and, thereafter, lived together on a farm owned by the defendant near Newark, Delaware. One child was born of the marriage. Early in 1950 they separated and in January of that year the defendant was ordered to pay a monthly sum for the support of the minor child.
In 1952 the defendant instituted an action for divorce against the plaintiff in the Superior Court of New Castle County on the ground of wilful desertion. The Superior Court denied a divorce.
Thereafter, early in 1954 the defendant sold all of his farm equipment and some time in the month of June, 1954 left Delaware, taking with him his personal belongings, with the intention, according to his testimony, of establishing his domicile someplace in the west where a drier climate would benefit his health.
Some time in the latter part of June, 1954, the defendant arrived in Nevada. On August 9, 1954, he commenced in Nevada an action for divorce on the ground that he and the plaintiff had lived separate and apart for three consecutive years next preceding the commencement of the action. In 1954 this was not a ground for divorce in Delaware.
On September 1, 1954, the plaintiff commenced this action in the Court of Chancery seeking to enjoin the defendant from proceeding further with his Nevada divorce action. On the same day, the Chancellor signed an order restraining the defendant from proceeding further with his Nevada divorce. A copy of the restraining order was sent to the defendant in care of his Nevada counsel, who received it on September 7, 1954. On the same day the Sheriff made return of the summons showing personal service upon the defendant by leaving a copy of the summons in the presence of John Mayer, the father of the defendant, at his home near Newark, Delaware.
On September 16, 1954, the Nevada court entered a final decree of divorce, dissolving the marriage between plaintiff and defendant. On September 17, 1954, the defendant married in Nevada his third wife.
On September 27, 1954, the defendant appeared specially in the Court of Chancery and moved to dismiss the plaintiff's complaint. This motion was treated by the court as a motion to quash the purported personal service of the summons upon the plaintiff. On the same day, the plaintiff filed a motion for substituted service pursuant to 10 Del.C. § 365 and on October 8, 1954, the defendant filed a motion to quash the order for substituted service.
On December 14, 1954, the Vice-Chancellor in an unreported opinion granted the defendant's motion to quash the Sheriff's return of purported personal service of the original summons and also set aside the order for substituted service because at the time the order was entered the defendant was not in default.
Thereafter, on April 18, 1955, the defendant filed an answer to the complaint, raising as defenses that the subject matter of the complaint was moot, the defendant having been granted a final decree of divorce in Nevada, and had since remarried in reliance thereon; that the Court of Chancery was without jurisdiction over his person because he had not been served with process, and because he was not domiciled in the State of Delaware at the time of institution of the suit.
The defendant thereupon moved for summary judgment and the plaintiff prayed for a citation holding the defendant in contempt of court for violation of the restraining order of September 1, 1954.
On October 26, 1955, the Vice-Chancellor in an unreported opinion denied the plaintiff's motion for a contempt attachment, and the defendant's motion for summary judgment, holding that the ultimate question to be decided was the domicile of the defendant upon which depended the question of whether or not the defendant's divorce decree in Nevada was entitled to full faith and credit in Delaware. After final hearing on July 24, 1956, in an unreported opinion, the Vice-Chancellor found that the defendant was domiciled in Nevada as of June 27, 1954 and that, accordingly, full faith and credit must be accorded to the divorce decree obtained by the defendant in the State of Nevada. On July 31, 1956, an order was signed dismissing the complaint and entering a judgment for the defendant from which plaintiff appeals.
The plaintiff first contends that since the defendant had notice of the issuance of the restraining order but, nevertheless, permitted the Nevada divorce litigation to proceed, he was in contempt of the Court of Chancery and, accordingly, the Vice-Chancellor should not have permitted him to defend the action until such time as he had purged himself of his contempt by obtaining a nullification of the Nevada divorce.
The parties differ as to which rule of the Court of Chancery is applicable to the giving of notice of the issuance of a restraining order and the subsequent holding of a party violating it in contempt of the order. The defendant urges that the matter is governed by Rule 65(b), Del.C.Ann., providing 'every temporary restraining order shall be effective only from the time it is served on the person restrained, or his attorney, if an appearance has been entered'. The plaintiff on the other hand urges the applicability of Rule 70(b) providing that an attachment for contempt may be ordered for disobedience of a restraining order upon the filing in the cause of an affidavit showing service on the defendant 'or that the defendant has knowledge of the order'.
We do not think this appeal, however, is to be decided by a determination of which rule governs. The ruling of the Vice-Chancellor raises squarely the question of the right of a contumacious party to defend his contempt of a court's restraining order on the ground that the court was without jurisdiction to enter it.
The plaintiff refers us to several decisions in support of her contention that the question of legality of a restraining order, or the jurisdiction of the court to order its issuance, may not be availed of as a defense to a citation for contempt in having disobeyed it.
The first of these authorities is Kempson v. Kempson, 61 N.J.Eq. 303, 48 A. 244. We think the circumstances of the Kempson case differ from those in the case before us. It is quite apparent from reading the very lengthy and detailed opinion in the Kempson case that the defendant who had violated the restraining order in question had remained outside of the territorial limits of the State of New Jersey for the purpose of avoiding the service of process, that he continued to remain domiciled in New Jersey throughout the entire time, and that his action in instituting an action for divorce in North Dakota was in fact a fraud upon the North Dakota courts and the courts of New Jersey. It furthermore appears that actual physical delivery of a copy of a restraining order was made to the defendant personally pursuant to the order of the New Jersey court.
Furthermore, as a preliminary to holding the defendant in contempt, the Vice-Chancellor in the Kempson case examined into the question of the defendant's domicile and determined that the defendant had remained domiciled in the State of New Jersey and that, since his wife was also domiciled there, clearly New Jersey had jurisdiction over the marital status of the parties which the defendant, in violation of the restraining order, had attempted to change by the North Dakota litigation. The court concludes, therefore, that because of these circumstances New Jersey had such jurisdiction over the person of the defendant as to empower it to control his actions with respect to the marital status.
The facts of the Kempson case and the course of action followed by the Vice-Chancellor make it clear in our opinion that it is not authority for the position taken by the plaintiff before us to the effect that no preliminary inquiry may be made of the jurisdiction of the court to enter the order, violation of which has placed the party in contempt.
The plaintiff next relies on United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319. This was the case of a Sheriff who had custody of a prisoner sentenced to die, having received notice by telegram of the granting of a stay of execution by one of the Justices of the Supreme Court of the United States, and despite this notice having entered into a conspiracy which resulted in the death...
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