Rinaldi v. Rinaldi

• Decision Date: 18 October 1922
• Docket Number: No. 49/157.,49/157.
• Parties: RINALDI v. RINALDI.
• Court: New Jersey Court of Chancery

118 A. 685

RINALDI

v. RINALDI.

No. 49/157.

Court of Chancery of New Jersey.

Oct. 18, 1922.

(Syllabus by the Court.)

Petition by Inez Colomba Rinaldi by her next friend, Morris Roncoroni, against Peter Rinaldi, for annulment of marriage. On final hearing on master's report and depositions ex parte. Order directed, re-referring cause to special master on motion of petitioner if made within 30 days; otherwise petition dismissed.

Smith & Brady, of Phillipsburg, for petitioner.

WALKER, Ch. Our statute conferring jurisdiction of causes for the purpose of annulment of marriage provides that jurisdiction may be acquired (1) by personal service of process upon the defendant within this state when either party is a bona fide resident here at the time of the commencement of the action, or (2) when the defendant cannot be served personally with process within this state, and when at the time of the commencement of the action the petitioner is a bona fide resident here, jurisdiction may be acquired by publication, to be followed where practicable by service upon, or notice to, the defendant without this state, etc. P. L. 1907, p. 474, § 5, subds. I, H.

On examining this case on the master's report and depositions annexed, I filed a memorandum in which I recited that the parties were married February 23, 1917, at Syracuse, N. Y., when the petitioner was 12 years 8 months and 5 days old; that they have not cohabited since March 17, 1917, when, on the latter date, petitioner left the defendant and went to the home of her brother in Phillipsburg in this state, where she has lived ever since; and I cited Jimenez v. Jimenez (N. J. Ch.) 116 Atl. 788, in which I held that a marriage as to its dissolution is governed by the lex domicilii, and that this applies to nullity suits as well; that here as there, the petitioner claims to be domiciled in New Jersey, and invokes the jurisdiction of our court, but that there may be an impediment to the granting of the decree, for the proofs show that the defendant is a resident of the state of New York, where the parties were married and lived through the brief period of their cohabitation; and the question arises, Can this wife, by deserting her husband in that state, come here and obtain a domicile for the purpose of bringing a nullity suit? Jimenez v. Jimenez, supra. The desertion here referred to means leaving, and the word is not used in a technical sense. I concluded my memorandum with the statement that counsel might be heard orally or on briefs upon the question of residence.

In pursuance of the leave thus given, counsel for petitioner appeared before me and argued the reserved question, citing Avakian v. Avakian, 69 N. J. Eq. 89, 60 Atl. 521, as authority to the effect that the petitioner is domiciled in New Jersey, and has the requisite residential status to maintain this suit. In that case Vice Chancellor Pitney observed, 69 N. J. Eq. at page 99, 60 Atl. at page 525:

"The notion that the domicile of the wife follows that of her husband has little or no practical application to suits between husband and wife, since, if the wife was justified in leaving her husband, she thereby became entitled to adopt a new domicile, and if she was not so justified she will fail in her suit on the merits."

Avakian v. Avakian, supra, is also an authority that tills court has power to annul a marriage solemnized in another jurisdiction, and when the cause for action arose in a foreign state.

In order, apparently, to lay a foundation for the obtaining of a bona fide residence in this state by the petitioner upon her actual desertion of her husband, counsel has filed an affidavit of the petitioner, in which she says that prior to her marriage she was in good health, robust, and strong for a girl of her age (12 years); that her experience on the first night of her married life was such that she incurred a feeling of fear of the defendant, and from that time on she never had intercourse-meaning, of course, sexual intercourse—with him of her own free will and consent, and on each occasion thereafter when they had intercourse she complained of pain and suffering that she underwent, and begged the defendant not to try to have intercourse with her; that her health failed, and it was necessary to call in a doctor to treat her; that he told her that she was very nervous, and that her condition was such that she should go to bed and remain there; that she remained in bed for about 1 1/2 weeks, or up to the very day she was taken from her husband's home by her father, whom she begged to take her away from the defendant, saying if her father did not take her she would run away, because she could not stand that life any longer.

This affidavit is intended as a showing that the wife was justified in leaving her husband. That may be so. In English v. English, 27 N. J. Eq. 579, upon bill for divorce a mensa et thoro, on the ground of extreme cruelty, consisting mainly in gross abuse by the defendant of his marital rights in insisting on having intercourse with his wife against her entreaties and expression of apprehension that it would be fatal to her, she being kept awake many nights by the pain she suffered during and after intercourse, Chancellor Runyon decreed a divorce from bed and board forever. 27 N. J. Eq. 74. The Court of Errors and Appeals in reversing the decree said that the action of that court was not based upon any approval of the acts of the husband of which his wife complained, nor upon his requests for her return, nor upon any formal security that he could offer for his future good behavior, and held that a divorce a mensa et thoro will be granted where there is gross abuse of marital rights.

Vice Chancellor Pitney, in his assertion in Avakian v. Avakian that a wife could acquire a domicile independent of that of her husband if she is justified in leaving him, could not have meant she could leave him for any cause sufficient unto herself not affording legal justification. The fact in the ease before him was that a marriage contract between a girl 14 years of age with a man 55 years old, in the circumstances recited was procured through duress by the man practiced on the girl. This, of course, was an offense which justified her leaving.

In Re Geiser's Will, 82 N. J. Eq. 311, 87 Atl. 628, I held, as ordinary, at page 313 of 82 N. J. Eq., at page 628 of 87 Atl., that upon marriage the legal domicile of the wife merges into that of the husband as a legal sequence of the nuptial contract, and the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband's consent. That consent may be either actual or constructive, and may be manifested by acquiescence, by abandonment, or by such conduct inimical to cohabitation as would secure to the wife a decree of divorce a vinculo or a mensa et thoro.

In Suydam v. Suydam, 79 N. J. Eq. 144, 80 Atl. 1057, I held, when vice chancellor, that if a husband be guilty of conduct amounting to a matrimonial offense that would constitute ground for divorce, his wife is justified in leaving him and the desertion thereby becomes his.

In Rogers v. Rogers, 81 N. J. Eq. 479, 86 Atl. 935, 46 L. R. A. (N. S.) 711, the Court of Errors and Appeals held that desertion is justified only when the deserting party has been so offended against as to authorize, at his or her instance, a decree of divorce or judicial separation.

In Thompson v. Thompson, 89 N. J. Eq. 70, at page 77, 103 Atl. 856, Vice Chancellor Backes held that in legal contemplation the husband's domicile is that of the wife, and unchangeable by her, except with his acquiescence or consent or for misconduct on his part, inimical to the union, as justified her in selecting another, citing, among other authorities, In re Geiser's Will, supra, and Tracy v. Tracy, 62 N. J. Eq. 807, 48...