Smith v. Smith

Decision Date06 July 1943
Citation72 Ohio App. 203,50 N.E.2d 889
PartiesSMITH v. SMITH.
CourtOhio Court of Appeals

J. Louis Warm and James B. O'Donnell both of Cincinnati, for appellant.

Peck Shaffer, Williams & Gorman, of Cincinnati, for appellee.

MATTHEWS Judge.

This is an appeal on questions of law from the Court of Common Pleas of Hamilton County. That Court found that neither party was in a position to invoke relief and, therefore, refused to make any declaration concerning or disturb in any way, the situation in which the parties had placed themselves. The opinion of the Court is reported in 9 Ohio Supp. 49. Both parties were dissatisfied with that hands-off attitude and have appealed to this Court.

The record discloses that the defendant Ruth Kuh Smith (nee Rosenthal) was married to one Julius S. Kuh at Atlantic City in the State of New Jersey on the 30th day of June, 1929. At that time both were residents of that state and continued to be residents thereof until the defendant removed to Ohio shortly after December 14, 1933, with exception of a short period when defendant resided in Pennsylvania.

The defendant and Julius S. Kuh separated in September, 1932, and have not lived together as husband and wife since. One child--a son--had been born of the marriage. The father agreed that the mother should have the custody of the child. Shortly after the separation, the defendant started to consider the desirability of securing a divorce from Julius S. Kuh, and her advisers found that there were objections from their standpoint to the laws of New Jersey, where she and her husband resided, and they then investigated the laws of other jurisdictions, seeking a jurisdiction that afforded the easiest and speediest escape from the bonds of matrimony. She finally selected the Republic of Mexico as the jurisdiction in which to proceed. Attorneys were employed to represent her and her husband. An action for divorce was begun on September 11, 1933, in which one of the attorneys appeared as the representative of the wife, who was the plaintiff, and the other appeared as the representative of the husband, who was the defendant. They acted under written powers of attorney. The Mexican Court entered an interlocutory decree on October 7, 1933, and on October 9, 1933, the decree was made absolute.

During all of this time, Ruth Kuh and Julius S. Kuh resided in the state of New Jersey, except that after their separation, Ruth Kuh resided in the state of Pennsylvania, but had returned to the state of New Jersey before the plan to file suit for divorce in the Republic of Mexico was arranged. The employment of the Mexican attorneys was effected by correspondence and neither Ruth Kuh nor Julius S. Kuh was ever at any time in the Republic of Mexico.

The plaintiff in the action now before the Court met the defendant for the first time on August 4, 1933, in Atlantic City, New Jersey. He immediately proposed marriage to her and was told that she was married, but was considering filing an action for divorce which he undoubtedly urged her to do.

There is a dispute as to the extent of the plaintiff's participation in arranging for this Mexican divorce, but there is no doubt that he knew from the beginning that the divorce action had been filed there and that Ruth Kuh was continuously in the state of New Jersey and never in the Republic of Mexico. He was in constant communication with her at addresses in the state of New Jersey during all of that time.

On December 14, 1933, the plaintiff, a resident of the state of Ohio, and the defendant, a resident of the state of New Jersey, went to Stamford in the state of Connecticut, went through a ceremonial marriage there, and almost immediately came to the state of Ohio, where they have resided since, and together as husband and wife until their separation in February, 1941.

This action was filed by the plaintiff seeking a declaration that the marriage ceremony between him and the defendant was and is null and void because the defendant had at that time, and ever since, a husband other than the plaintiff. His petition contains a prayer for injunction against the disposition of certain property by the defendant and for general relief.

The defendant denied that she had a husband at the time she went through the marriage ceremony with the plaintiff, asserted the validity of the Mexican divorce decree, and by cross-petition sought divorce and alimony on the ground of gross neglect, extreme cruelty and adultery.

We have been aided very much by counsel in deciding the legal questions suggested by this state of facts. Many cases have been cited--too many, to permit detailed discussion of all of them.

(1) The first issue to engage us is the operative effect in the United States of the decree entered by the Mexican court. The marriage status which it purports to dissolve did not arise under Mexican law, as the parties had never been in Mexico at any time, it had never existed because of that law and its recognition of the marital status, arising and continuing solely by virtue of the laws of New Jersey, was for the sole purpose of dissolving that relationship between persons who at the time owed it no obligation, duty, or allegiance, but, on the contrary, owed all their allegiance to the United States of America. Whatever recognition it is given by any State of the United States results from comity and not from any constitutional or treaty provision and there is no constitutional provision and we have been cited to no treaty provision.

Legislative, executive, and judicial writs can run only within the territorial limits of the sovereignty whose writ it is. Any attempt to project its authority beyond its own territorial limits would be an invasion of the sovereignty of another state or nation. In the nature of things jurisdiction is limited to persons and things within the territorial limits of the sovereignty and it cannot be exercised over persons or things that were never within the state or nation whose authority is asserted. The questions are whether a vicarious presence through an attorney will satisfy the rule and confer power to destroy a status created by another sovereignty, or whether the latter sovereignty will by refusal to denounce it thereby sanction the action of the parties in the circumvention of its laws.

We believe reason and authority support the view that a state or nation will accord no recognition or validity to the acts of nationals who seek to evade the restraints imposed by their own state or nation by invoking the action of another state or nation to which they owe no duty or allegiance, and that the action of such other country through whatever department--judicial or otherwise--will be given no recognition ex proprio vigore by the state or nation which created the legal relation it seeks to affect. It seems to us that a contrary holding pushes the rule of comity to the point of sanctioning the intrusion of a foreign power into the internal affairs of a nation. In distinguishing the case of Curry v. Curry, 65 App.D.C. 47, 79 F.2d 172, in Garman v. Garman, 70 App. D.C. 4, 102 F.2d 272, 273, 122 A.L.R. 1317, at page 1319, the Court said: 'It does not appear herein that there was any misrepresentation of jurisdictional facts to the Mexican court; and it does appear that the Mexican decree was void because neither of the parties was domiciled in Mexico nor personally present there.' The facts in that case are almost identical with the facts in the instant case.

As the first marriage took place in New Jersey and the parties were at all times domiciled and personally present in that state or the state of Pennsylvania and as the second marriage took place in Connecticut, it may serve some purpose to explore the law of those states to ascertain whether any recognition is accorded by either to a Mexican divorce obtained under such circumstances, or recognition given to the marriage ceremony performed in Connecticut.

(2) We have been referred to no New Jersey case directly upon this point, but we do find the general principle stated in Davis v. Green, 91 N.J.Eq. 17, 108 A. 772, 773, in a case where there was an existing marriage at the time the ceremonial marriage was performed that: 'The marriage here under consideration is absolutely void without the aid of any judicial decree to that effect.' The other New Jersey cases cited, Bournonville v. Cain, 104 N.J.Eq. 310, 145 A. 482, Margulies v. Margulies, 109 N.J.Eq. 391, 157 A. 676, and Nichols v. Nichols, 25 N.J.Eq. 60, as well as Davis v. Green, are not cases involving divorce decrees entered in other jurisdictions where neither party was domiciled and the marriage status had no existence. The courts, therefore, were not called upon to, and did not, consider the specific question of whether New Jersey would tolerate the avoidance of its public policy as expressed in its statutes by such action on the part of its citizens. The general statement lends no support to the view that it would countenance the renunciation by its resident citizens of its laws in favor of the laws of a foreign country.

(3) We have been cited to several Connecticut cases on this general subject.

The first paragraph of the syllabus to Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684, Ann.Cas.1916B, 920, is: ' One who seeks a divorce from a nonresident respondent must have acquired a bona fide domicile in the State in which the action is brought, otherwise its courts are without jurisdiction of the res, that is, the existing marriage status.'

We find no departure from that principle in any Connecticut case.

Town of Roxbury v. Town of Bridgewater, 85 Conn. 196, 82 A 193, and Northrop v. Knowles, 52 Conn. 522, 2 A. 395, 52 Am.Rep. 613,...

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2 cases
  • Smith v. Smith
    • United States
    • United States Court of Appeals (Ohio)
    • July 6, 1943
    ...72 Ohio App. 20350 N.E.2d 889SMITHv.SMITH.Court of Appeals of Ohio, First District, Hamilton County.July 6, ROSS, P. J., dissenting. Suit by Jack J. Smith, Jr., also known as J. J. Smith, Jr., against Ruth Kuh Smith for a declaration that the marriage between the parties is void and for an ......
  • Michael Haska v. Evelyn Haska, 89-LW-0483
    • United States
    • United States Court of Appeals (Ohio)
    • February 10, 1989
    ...... during the pendency of such action and at no time was within. the boundaries of Mexico. Smith v. Smith (1943), 72. Ohio App. 203. In the instant cause, the appellant testified. that neither she nor her former husband ever went to ......

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