Winston v. Winston

• Decision Date: 05 February 1901
• Parties: WINSTON v. WINSTON.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 553

59 N.E. 273

WINSTON

v.WINSTON.

Court of Appeals of New York.

Feb. 5, 1901.

Appeal from supreme court, appellate division, First department.

Action for an absolute divorce by Walker Winston against Lillie Winston. From a judgment of the appellate division (54 N. Y. Supp. 298), affirming a judgment dismissing the complaint, both parties appeal. Affirmed.

John J. Crawford, for plaintiff.

Theodore Baumeister, for defendant.

GRAY, J.

The plaintiff brought this action in order to obtain a judgment of absolute divorce from the defendant upon the ground of her adultery. The defendant denied the allegations of the complaint, and set up two defenses. She made recriminatory charges against the plaintiff, to the effect that he had been guilty of adultery, and set up a decree of divorce from the plaintiff procured by her in the courts of the territory of Oklahoma, which authorized her remarriage. The referee before whom the trial was had dismissed the complaint, upon the ground that, notwithstanding the plaintiff had made out a case against the defendant, he himself was proved to have been guilty of similar misconduct. Upon the report of the referee it was adjudged, in the first place, that the Oklahoma divorce was invalid, and, in the next place, that the complaint was dismissed upon the merits. From this judgment both parties appealed,-the plaintiff because of the dismissal of the complaint, and the defendant because of the adjudication with respect to the Oklahoma divorce. The appellate division, in the First department, affirmed the judgment, and both parties have taken cross appeals to this court from the judgment of affirmance.

The evidence showed the Oklahoma decree of divorce, relied upon by the defendant, to have been invalid, because obtained without personal service of process upon this plaintiff, the defendant therein. The offense charged by the complaint against the defendant had consisted in the latter's marriage, after the Oklahoma decree, with the co-respondent named, and the question was whether the relation thus established was lawful in its nature or meretricious. That a judgment rendered upon the constructive service of process is without force against the personal status of a nonresident and nonappearing defendant has been frequently the subject of judicial discussion, and that the divorce decree in question was without jurisdiction as to this plaintiff, always a resident of this state, cannot be questioned under the authorities. Lynde v. Lynde, 162 N. Y. 405, 412,56 N. E. 979,48 L. R. A. 679;Atherton v. Atherton, 155 N. Y. 129, 49 N. E. 933,40 L. R. A. 291;O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. 110;People v. Baker, 76 N. Y. 78. The defendant, however, seeks to distinguish this case through the feature of an agreement made between herself and her husband, prior to the time when she went to Oklahoma and procured her divorce, which authorized her ‘to live separate and apart from her husband,’ and ‘to reside from time to time in such place and places as she might think proper.’ It is argued in her behalf that she had acquired such a status as a resident of Oklahoma as to make the decree available to her. Whatever there is claimed to be of force in the argument, it is needless to discuss it; for the finding of the referee is that she never had been a resident of Oklahoma, and, as there was evidence upon that point which would support such a finding, it is conclusive upon us since the affirmance of the judgment by the appellate division.

Upon the plaintiff's appeal, the question is made whether the evidence to establish his guilt was sufficient in law. If he had been guilty of adultery, then he was not entitled to the divorce prayed for. Code Civ....