Power v. Power

• Decision Date: 18 May 1903
• Citation: 65 N.J.E. 93,55 A. 111
• Parties: POWER v. POWER.
• Court: New Jersey Court of Chancery

55 A. 111

65 N.J.E. 93

POWER

v. POWER.

Court of Chancery of New Jersey.

May 18, 1903.

denying her a divorce, to object to an order affecting the custody of the children, on the ground that the bill, in so far as it purported to give the court jurisdiction of the children, was multifarious.

Action by Mary M. Power against Henry Power for divorce. Counter petition by husband for custody of child. Judgment for counter petitioner on terms.

R. V. Lindabury and W. R. Barricklo, for petitioner.

C. E. Hendrickson, Jr., and J. H.

Adams, for defendant.

PITNEY, V. C. I think this case should be disposed of at once. It comes before the court in a peculiar manner, and it is better that I should state it over again, so that there shall be no mistake about it:

The wife, Mrs. Power, filed a petition in this court on the 8th of November against her husband, praying for divorce on the ground of desertion for two years; alleging the desertion to have taken place in the fall of the year 1899. She therein states that she has two children, giving their ages. The first one was born on the 15th of May, 1894, and is consequently now nine years old. The prayer is this: "Your petitioner therefore prays that she may be divorced from her said husband, the said defendant, and have the custody of said John Alsop Power (that is, the oldest boy) and Alan Merewether Power (that is, the youngest child), and for other relief." The defendant answered, and denied the desertion, and set up a contract of separation made on the 15th of November, 1899. At the hearing, desiring to have affirmative relief with regard to one of the children, he filed a counter petition praying for the custody of John Alsop Power, the oldest boy. That petition was served on the day of the hearing, and the counsel for the wife said he did not care for any order to show cause to be made on it, but would waive those formalities and appear to it. An order to show cause was, I believe, made returnable to-day.

Proofs were taken both as to the desertion and as to the custody of the children. At the end of the proofs the court heard counsel, and denied the prayer of the petitioner, the wife, for decree on the ground of desertion; and, so far as the wife's petition for the custody of the children went, it denied that on the merits. I intimated a strong opinion that I thought the boy could go with his father, but did not utter a final opinion, and laid the matter over until to-day to enable the wife to be heard in answer to this counter petition. That came on to-day, and counsel for the wife expressed no further desire to add any further evidence, but made a written protest, supported by a powerful argument, against the jurisdiction of the court to determine this question at all, on the ground that the infant child whose custody is sought by the husband is not a domiciled resident of the state of New Jersey. That is the foundation of the protest, and, as ancillary to that position, the ground is taken that the petition of the wife for divorce and the custody of the children does not give this court jurisdiction to hear the counter petition of the husband, because the one is not germane to the other, but they are in fact separate matters. Now, at the hearing of the original cause, it turned out that the parties were living separate by reason of an agreement of separation which was entered into between them on the 15th of November, 1899. There was no dispute but that that agreement had been entered into, and the court held distinctly that, upon the evidence, it was entered into by the wife advisedly, with the aid of counsel; that no fraud was practiced on her, nor was anything of that kind set up. There was no contention on behalf of the wife that the agreement was not entered into by her with her eyes open, and with the very best legal and friendly advice. I will merely say that much now, because I enlarged on it somewhat, if I recollect right, in my oral opinion delivered at that time.

Now, when we open that agreement we find this clause: "That the party of the second part shall have the care, custody, and control of the two infant children of the parties of the first and second part hereto, to wit, John Alsop Power, now in his sixth year, and Alan Merewether Power, now in his first year, until they shall respectively attain the age of seven years, or until such time as this instrument is altered in accordance with the following provisions; that when the said John Alsop Power shall have attained the age of seven years or at any time thereafter, upon the request of either party, the parties hereto of the first and second parts [that is, the husband and wife] shall enter into a further agreement, if possible, which said agreement shall be considered only as a modification or change of this special provision of this instrument, and which shall provide for the care, custody, control, maintenance, and welfare of the said John Alsop Power from and after the execution of said new agreement; that if after reasonable concideration the said parties hereto are not then able to agree upon mutually satisfactory terms of such new agreement, then and in that event the said parties shall respectively hold themselves at all times thereafter in readiness to answer any process of any court having jurisdiction which may issue at the suit of either of the said parties for the purpose of obtaining a decree providing for the future care, custody, control, maintenance, and welfare of the said John Alsop Power." And a like clause is inserted, to apply when Alan Merewether Power, the youngest child, comes of age. Then, in addition, it appeared that the parties were, before the date of that agreement, domiciled residents of the town of Montclair, in this state; that the father continues to be a domiciled resident of than state and of that town. It further appeared that the separation agreement contained the usual clause that the parties might live separate and apart, etc., which clause, of course, was instantly and perfectly fatal to the complainant's suit for divorce; and I expressed my surprise as to why it should have been brought—not why a petition might not have been tiled to have the custody of the children settled, in pursuance of this very clause in this agreement, but because it was perfectly impossible for the petitioner to set up that the defendant, her husband, had deserted her, when she had been living separate and apart by his consent, and he had been living separate and apart by her consent. Now, the wife, taking advantage of this separation agreement, made her home in the city of New York, and took those children there, by the consent of her husband, and subject to the terms of this agreement, by which, as I interpret it, the husband did not lose control of his children, or any of them, but they were subject still to his control after a certain time. After the time bad elapsed with regard to John, the oldest one, the wife comes into this court and appeals to this court for the power to have that child awarded to her. Now, if that is not submitting to this court the question what should be done with that child, I don't understand what is; and I said at the hearing, and I am still of the opinion, notwithstanding what has been argued with so much power by Mr. Lindabury, that it was competent for this court in the wife's suit to have awarded to her the custody of that child, John Alsop Power, and refused her the decree for divorce. I see no incongruity whatever between the two results in such a case, where a husband and wife are living separately, for one of them to sue the other for divorce, and also for the custody of the children, and to fail to get the divorce and to recover the children in that petition. The claims are not incongruous. They do not render the bill or petition multifarious. But grant now the whole extent of the argument of my learned friend that that petition was multifarious, yet the defendant, the husband, did not set it up, but answered it, and it does not lie in the mouth of this wife to say, "I must not be bound by my own petition, because I made it multifarious." The husband came in and joined issue. He said, "I am ready to meet you on both issues, and I make the issue a double one," so to speak—"not only whether you shall have the boy. I will make it on the other side. I will ask for the positive relief that I am to have him. Here is our contract." Now, she has come here, and, in my judgment— I will repeat: There was no incongruity in the two claims, for, suppose, as I say, that she had proven beyond all peradventure before me that this man was entirely unfit to have...