Voss v. Voss, A--8

• Decision Date: 16 October 1950
• Docket Number: No. A--8,A--8
• Parties: VOSS v. VOSS.
• Court: New Jersey Supreme Court

Page 402

5 N.J. 402

75 A.2d 889

VOSS v. VOSS.

No. A--8.

Supreme Court of New Jersey.

Argued Sept. 18, 1950.

Decided Oct. 16, 1950.

Joseph L. Freiman, Union City, argued the cause for the appellant.

The opinion of the court was delivered by

OLIPHANT, J.

This is a matrimonial case in which plaintiff appeals from a dismissal of his complaint whereunder he sought a divorce from the defendant on the ground of desertion. Certification to the Superior Court, Chancery Division, was petitioned for and granted.

The defendant was served personally with process but she filed no answer or other response nor did she appear in the suit.

Plaintiff's proof showed that the parties were married January 26, 1914; that the defendant deserted the petitioner in April of 1927; and that both plaintiff and defendant were residents and domiciled in this state from the date of their marriage to March, 1948. At that time the plaintiff moved to Hillburn, in the State of New York, the defendant remaining a resident of this State. It will thus be seen that a non-resident husband sought a divorce under our statute from a resident wife on the ground of her wilful, obstinate and continued desertion, basing his right therefor upon her domicile here to support jurisdiction.

We are in accord with the determination of the Advisory Master that the issue was not one within the jurisdiction of our courts. This action was brought under R.S. 2:50--10, par. (a), N.J.S.A., 'When, at the time the cause of action arose, either party was a bona fide resident of this state, and has continued so to be down to the time of the commencement of the suit, except that no suit for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the two years next preceding the commencement of the suit a bona fide resident of this state'.

Both parties were domiciled in this state not only at the time of the wife's desertion in April, 1927 but until the husband moved to New York in March, 1948. They were both residents of New Jersey when the cause of action arose in 1929 and the first jurisdictional prerequisite was met. But the second prerequisite of continued bona fide residence in New Jersey preceding the commencement of the suit by one of the parties has not been established.

In every suit for divorce it becomes necessary to ascertain, in order for the court to acquire jurisdiction, the Situs of the status or Res. In the absence of a marital offense by the husband or unless the wife acquires a domicile elsewhere by his acquiescence or consent, or by such misconduct inimical to the union as justifies her in selecting another, the matrimonial domicile of the wife merges with that of the husband. Rinaldi v. Rinaldi,94 N.J.Eq. 14, 118 A. 685 (Ch.1922); Webb v. Webb, 178 A. 282, 13 N.J.Misc. 439 (Ch.1934); Heimler v. Heimler, 129 N.J.Eq. 497, 19 A.2d 790 (E. & A.1941); Shepherd v. Ward, 5 N.J. 92, 74 A.2d 279 (1950).

The words 'bona fide resident' as used in the statute are synonymous with domicile and mean that the parties or either of them must be actually domiciled within the State. Williams v. State of North Carolina, 325 U.S. 226 at pages 229 and 240, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Magowan v. Magowan, 57 N.J.Eq. 322, 42 A. 330, 73 Am.St.Rep. 645 (E. & A.1899); Tracy v. Tracy, 62 N.J.Eq. 807, 48 A. 533 (E. & A.1901); Wallace v. Wallace, 65 N.J.Eq. 359, 54 A. 433 (E. & A.1903); Duke v. Duke, 70 N.J.Eq. 135, 62 A. 466 (Ch.1905); affirmed 72 N.J.Eq. 434, 65 A. 1117 (E. & A.1906). The continuity of domicile at the commencement of the action under subdivision (a) is exacted in order that the marital status or Res will have its Situs in this state. If either of the parties is non-resident at the time of the commencement of the action, then the party upon whose bona fide residence jurisdiction depends must have established a legal domicile here and continued to be domiciled in this state for two years next preceding the institution of suit.

A husband does not acquire any new rights because of the accrual of the cause of action in this state for the reason that a divorce is not punishment for a wrong done by one spouse to another but is the result of the determination of the state concerned, that is the state of domicile, that a longer continued marital relation between the parties would be contrary to the policy of the law. Divorce, in short, is not a punishment for an act; it is the reaction of the state to the effect of an act upon the marital relations. The state where that effect is felt, that is the state of domicile, judges that as a result of the act the longer continuance of the marital relation is undesirable. Beale's Conflict of Laws, sec. 110.4, p. 472.

This being so, under the facts exhibited here, the state of domicile which would be concerned with the continuance of the marital relations of these parties is the State of New York which is where the Situs of the marital Res is.

There is nothing to prevent the husband re-establishing his residence here and bringing his suit after having been domiciled here for two years next preceding its institution. Cf. Adler v. Adler, 110 N.J.Eq. 381, 160 A. 346 (Ch.1932).

The plaintiff argues that when the statutory period of two years immediately following the act of desertion by the wife had expired in April, 1929 her right to return home was gone; the rights given him by the statute had become vested and he cannot be deprived of those rights except by his own act. This is undoubtedly the law, Gordon v. Gordon, 89 N.J.Eq. 535, 105 A. 242 (E. & A.1918); Kohler v. Kohler, 94 N.J.Eq. 474, 120 A. 34 (E. & A.1922) and on this legal proposition it is claimed that the accrual of a vested right to a divorce for a desertion dissolved the fictional unity of domicile from the time of such accrual and that defendant's continued residence here must be considered as establishing her separate domicile for the purpose of sustaining jurisdiction.

This argument is a Non sequitur. While a vested cause of action may have accrued to the plaintiff in 1929 that fact alone did not in the eyes of the law automatically terminate the marital status and the incidents arising therefrom such as unity of domicile where, as here, the defendant wife and not the husband is the marital offender. In our Divorce Act the jurisdictional requirements necessary to establish or acquire the cause of action were distinct and separate from those required to actually maintain it. The mere accrual of a right of action for divorce on the ground of a wife's desertion does not, at that stage, sever the unity of domicile.

Plaintiff says his position is supported by the general language pertaining to the duration of the marital domicile appearing in Re Geiser's Will, 82 N.J.Eq. 311, 87 A. 628 (Perog.1913). This was a will case which involved the domicile of a testator but the...