Opinion
01-10-1900
DUMONT v. DUMONT.
Edward S. Black, for petitioner. Cornelius Doremus, for defendant.
Suit by Elizabeth Dumont against Louis Emil S. Dumont for divorce. Decree for petitioner.
Edward S. Black, for petitioner.
Cornelius Doremus, for defendant.
PITNEY, V. C. (orally).
I don't care to hear you, Mr. Black. I will state my reasons, so that the parties may know what my views are. The petitioner sues the defendant for divorce on the ground of adultery. Her petition was filed on the 12th of November, 1898, and she alleges adultery committed by her husband with a Miss Greenberg at divers times and places mentioned, before that date. The answer denies generally the adultery, but it was admitted in open court on the trial that on the 14th of October—three or four weeks before the petition was filed—Mr. Dumont went through the ceremony of marriage with Miss Greenberg, and from thence lived with her as his wife; so that, as far as the adultery goes, there is no difficulty about the case. And I may say here that there are plenty of facts from which it could be inferred, without much straining of the judicial mind, that he had done the same thing frequently before that date. I, however, express no opinion upon that. The defense set up is a decree of divorce obtained by the defendant against the petitioner in a court of the state of North Dakota on the 26th of September, 1898. The petitioner attacks that decree, and was permitted, after proof made, to amend her petition by adding proper allegations on that subject, which defendant has the benefit of having denied. The decree is based upon service of process on the petitioner in the state of New Jersey, and she did not appear to the suit in Dakota. The decree is attacked on two grounds: First, want of jurisdiction in the Dakota court to pronounce any decree against the defendant; and, second, granting jurisdiction, that there was a palpable fraud practiced on the court in procuring the decree. The allegation of fraud has a wider range than that practiced on the court in procuring the decree on the merits. The allegation is that the defendant herein practiced a fraud on the Dakota court in inducing it to assume jurisdiction, and then, having induced the court to assume jurisdiction, he practiced a fraud on the court in inducing the court to make the decree. It is well settled that the provision of the constitution of the United States declaring that the courts of each state of the Union shall give to the judicial proceedings of other states the same faith and credit that they are entitled to in their own states does not prevent calling in question the jurisdiction of the court making the decree or judgment. Now, I will take the trouble to state what I understand is meant in this connection by jurisdiction. Jurisdiction of the court is power in the court, and is of two kinds: First, it must have jurisdiction of the kind of actionthat is brought; second, it must have jurisdiction of the party against whom the action is brought. First, as to the jurisdiction of the kind of action. AH courts do not have jurisdiction of all kinds of action. For instance, if you should bring an action of divorce in the circuit court of the county of Essex, and serve process on the defendant in the county of Essex, and a decree should be pronounced, that decree would be absolutely valueless and void, because the circuit court of the county of Essex has no power to deal with a question of divorce. Now, that is an illustration of what is meant by jurisdiction of the kind of action. The other is jurisdiction of the person, and that must be obtained by service of process within the territorial limits of the jurisdiction. If you should bring an action on a promissory note in the circuit court of the county of Essex, and serve the defendant with process in the county of Cape May, and the court, on that service of process, should proceed, and render judgment, that judgment would be absolutely void, because the court did not have jurisdiction of the person. And if you should bring an action on a promissory note in the supreme court of New Jersey, and the sheriff should go over to New York, and serve the defendant with process in New York, judgment rendered upon such service would be absolutely void, because the court, while it had jurisdiction of a suit on a promissory note, would not have jurisdiction of the person. Now, the jurisdiction of the person is indispensable. That is the general rule. Both jurisdictions must concur. The court must have jurisdiction of the kind of action, and it must have jurisdiction of the person. But there is an exception, which arises from necessity, to the requirement that there should be jurisdiction of the person obtained by service within the limits of the territorial jurisdiction. If a man claims to own a piece of land in the county of Essex, and some question arises as to the right of possession to that land, or as to the title to it, he cannot, by keeping out of the county of Essex, prevent the proper court of that county from taking jurisdiction of that question. And so, if he keeps out of the state, he cannot prevent the supreme court of New Jersey from taking jurisdiction of questions relating to the title of land within the state; and he cannot prevent the court of chancery from foreclosing a mortgage on property situate in this state by keeping out of the state, because the tiling itself—the res—is in the state. So, if he incurs an indebtedness, and goes out of the state, there comes another exception. The interests of justice require that a man should pay his debts, and if he has property in a particular state, and owes a citizen of that state, that citizen must have the right by judicial process to appropriate the property of the debtor to the payment of his debts; hence the attachment acts. But in all those cases where the defendant is not served within the territorial jurisdiction the courts require that the very best notice should be served on him that is practicable. But the exception is founded entirely upon the idea that the subject-matter of the suit—the res—is within the jurisdiction. Now, that exception has been extended by some of the states of the Union to cases of divorce. If a spouse has a domicile and a residence in the territorial jurisdiction, and the other spouse has been guilty of a breach of the marital contract, that delinquent spouse cannot, by going out of the jurisdiction, prevent the party who has the domicile there from having his or her remedy. That exception, I say, has been made in some states —in the majority of the states—of the Union, and it has been finally established in this state by a decision of the court of errors and appeals in the case of Felt v. Felt, which was decided in this court by me (57 N. J. Eq. 101, 40 Atl. 436), and has been affirmed by the court of errors and appeals by a large majority (45 Atl. 105), but has not yet been there officially reported. The only ground, however, as I said in Felt v. Felt, and again, I think, in the Streitwolf Case (N. J. Ch.) 41 Atl. 876 (in the court of errors and appeals, 43 Atl. 683), upon which the court can assume jurisdiction of a matter of divorce on the part of a complaining spouse without service of process within the territorial jurisdiction, is that the spouse has an actual domiciled residence in that jurisdiction. If he or she has such domiciled residence, and the delinquent spouse goes out of the jurisdiction, or is out of the jurisdiction, then the court will intervene; and I think, with great respect to the courts of our sister state, New York, that the decision in Felt v. Felt is right. In Felt v. Felt it was admitted by the counsel for the complainant wife that the husband, when he got his divorce in Utah, was a domiciled resident there, and had been for more than a year. If counsel had not admitted that, and had gone into the issue as to whether or not the husband had a domiciled residence In Utah, he might have troubled his opponent; but he relied upon the decisions of the state of New York, where he practiced, which hold exactly the contrary, viz. that jurisdiction in divorce cases cannot be obtained by service out of the territorial jurisdiction.
Now. I have stated this much of the law to make it perfectly clear. The allegation is that the defendant in this case, when he applied for a decree of divorce in Dakota, was not, nor was he at the time of his trial there, a bona fide domiciled resident of the state of Dakota, and that he imposed upon the court to make it believe that he was a domiciled resident, and entitled to the aid of the court, based upon service out of the jurisdiction. And that is the first part of the fraud. Now, let us look at it. The defendant and his wife were married In 1873, and they lived in New Jersey from thence until 1808, and were happy people, as far as appears, for the most part of their married life. Certainly, if ever there was a devoted, loving wife, who hascome into the court of chancery for a divorce, it is the petitioner in this case. The defendant met this young lady, Miss Greenberg, in his business. He was an expert diamond setter. His services were in high demand—of course, only in those places where there are a great many diamonds in use, and a great demand for that kind of business. He worked first for a house here in Newark,— Durand's,—and there met this young lady, Miss Greenberg, and then set up for himself in New York for a while, and took her in his employ there, and then, failing in that, he went into the employ of Shear & Co., who were the leading diamond setters in the city of New York. Now, his wife discovered in 1805 and 1896—along there—that he was losing his affection for her. She was sensitive on the subject. She felt that there was something wrong. She got hints about Miss Greenberg, and she watched them, and found that he was taking her to New York nights for some purpose, and charged him with undue intimacy with her. He then came out point blank, and told her he would not live with her any more. That was in the spring of 1897. She was sick; a weakly woman. They lived in apartments; did not keep a servant all the time. They had a charwoman, as I recollect, to come in and do some of the heaviest work. He told his wife he would not live with her any more; that they must part. She begged on her knees that he would not desert her; said she could not live without him; manifested her love as strongly as a woman possibly could, even to the point of humiliation. And then her friends—mutual friends—Mr. and Mrs. Potter besought this defendant to live with his wife, to not desert her, not turn her out of doors. He said it was irrevocable; that he would not live with her. He would make a certain provision for her support, but he would not live with her, and the marriage relations must end. He then sent Mr. Thorne, a respectable attorney, son-in-law of Mr. and Mrs. Potter, to see her, and to arrange that she should bring a suit for divorce against him; and, without promising directly what the husband would do, it is perfectly manifest that the sum and substance of what he said was that, if she would bring a suit, she would be furnished with the evidence which was necessary to obtain a decree of divorce; and, of course, the only ground of that at the time was the ground of adultery. The wife declined; said she would never be a party to anything of the kind. She showed her love and affection for her husband by refusing absolutely any such arrangement, even if she were provided for. Then the husband put some money in her pocket—$80, I think—with which to settle their household bills; said he would pay the rent of their apartment until the 1st of May, but said: "I will have nothing more to do with you. I will make you an allowance after that, but I won't support the establishment any longer." Absolutely, in effect, he turned her out of doors on notice. That is the effect of it. Says: "I won't maintain this establishment. Here is money to last you for a time. The rent is paid; the grocery bill is paid; and that is the end of it." And nothing that she could do, nothing that friends who were called in,—Mr. and Mrs. Potter, perfectly respectable people, whose manner on the stand commanded the respect of this court,—nothing that the wife or they could do, would turn him. He had become infatuated with Miss Greenberg, and was bound to satisfy his lust with her. Now, that was in April, 1897. The laws of Dakota made desertion for one year a ground of divorce. On the 21st of April, 1898,—just a year, or perhaps a few days more than a year, after they had separated; after he had turned her out of doors substantially,—he went to Dakota, and three months later commenced a suit there for divorce. Now, this defendant was obtaining high wages—I think between $5 and $10 a day—in this business of diamond setting, at the center of the diamond setting business of the United States; and that was the only place, unless it was perhaps Philadelphia or Chicago, where a person of that character could get a living at that business; and he goes to a little town in North Dakota,—Fargo,—with a few thousand inhabitants, 2,000 miles west of New York, out in the far Northwest, where there was perhaps business enough in the whole year to last him about a week. He rents a room—a bedroom—in a house. He buys a table—a plank set up for workmen— that perhaps cost two dollars, and a chair to sit in. He sent out circulars, etc., with the result that, I suppose, he had business enough in the neighborhood, in the whole state of Dakota, to furnish him work enough to last him half a day in a week; not more than that. And while he was there work came to him by express from the East, and that is really what was occupying his time. Now, from whom came those express packages from the East? He could have shown from whom they came, but he did not. Why, undoubtedly, they came from his old employers. The court would be blind if it could not see through a shallow device like that. He stayed there until the 20th of September, when a decree was granted him. He had to be there three months before he could commence suit, and on the termination of the suit he immediately returned to the East.
Now, I have here his sworn evidence before that court,—bear in mind the fact that I called attention to his actually turning his wife out of doors,—and what does he swear to? Why, he swears that she abandoned him; that they were living together in harmony; that he was providing for her; and that he went home one night with no idea that she had left, or intended to leave, and found everything topsy-turvy, and his trunk removed, and swears that she abandonedhim. Now, that was a willful, palpable falsehood, as base as ever delivered in a court of justice. Then he goes on in his evidence, and he is asked: "Q. What was your object in coming West? A. Well, I was kind of tired of living in the East, so I thought, this being a new place, and never any of my business done here, I thought, by making a change, I could come to some success in business. Q. By the Court: How long are you going to live here, Mr. Dumont? A. I am coming to stay here forever. Q. Where is your business here? A. At No. 618 North Fifth street. Q. by Mr. Thompson: You are living with Mr. A. C. Henderson? A. Yes, sir. Q. Your business is such that you do not need any store? A. No, sir. Q. by the Court: Jewelry setter? A. I set jewels, etc. Q. by Mr. Thompson: You have tried to establish yourself? A. I have. Q. You have sent out circulars? A. Yes, sir; all over North Dakota, and some over Minnesota. Q. by the Court: Do you know what a residence in good faith is? A. I think so. Q. What the statutes require you to be,—a resident in good faith? A. Yes, sir. Q. What does that mean? A. It means that you are expected to be here and stay here. That is the way I understand it. Q. It is not your intention, then, that if a decree is granted here, to move out? A. No, sir; no necessity for me." Now, it appears from the questions put by the court that the courts of Dakota base their jurisdiction upon a mere residence. If they do, they do not recognize the true criterion, because a residence may not be a domicile. A man may have his domicile in New Jersey, and be a member of congress, and live in Washington. He may have his domicile in New Jersey, and go to Europe and live six months, and be a resident there, without having any domicile there or losing his domicile here. I hold that a mere residence is not sufficient. I hold that it must be an actual domicile. There must be an animus manendi,—an intention to remain. This was distinctly held in the Magowan Case, 57 N. J. Eq. 322. 42 Atl. 330. Now, it is not necessary to enlarge on that The defendant did not go to Dakota with the intention of staying there. He went there for the purpose of obtaining a divorce; waited just a year from the separation, until he could swear that the desertion had continued a year, and stayed there just long enough to get his divorce on the 26th of September; and about the 1st of October we find him at work with Mr. Shear, in New York, with his apron on, just as he had always done; and on the 14th of October he marries this woman. Now, then, he practiced a fraud on the court when he swore that it was his intention to live there permanently, and induced the court to assume jurisdiction. He practiced a fraud on the court, within the decisions I will refer to in a moment, when he swore that his wife had deserted him. Now, as to the cases in New Jersey on the subject of domicile. One or two of them have been referred to by me. The first one is the Fairchild Case, 53 N. J. Eq. 678, 34 Atl. 10. In that case Fairchild did actually live in Kansas, and sued his wife, who lived here, for divorce, and she went there, and appeared to the suit. Where a party is served out of the territorial jurisdiction, and comes in and appears to the suit, that appearance cures the service out of the state. In the case I put a while ago, if you sue a man on a note, and serve a summons on him in New York to answer a suit in the supreme court of this state, or in the Essex circuit, and he comes here and appears, it makes no difference whether he was ever served, because there is an appearance. In the Fairchild Case, so far as the service of process goes, the service out of the jurisdiction was cured by the appearance of the wife; and the court held that the decree must stand. But it made an important exception to the rule that decrees in such cases must stand, namely, fraud. So, in the Magowan Case, 57 N. J. Eq. 322, 42 Atl. 330, there was an appearance, precisely as there was in the Fairchild Case, but the court distinguished, and said that the going to Oklahoma, and pretending to have a residence there, was a fraud; and, although the woman appeared, she was not bound by the divorce, because the husband never had any domicile there. It is to be regretted that the opinion in the Magowan Case did not mention the circumstance that the wife appeared in the Oklahoma court. Then came the Felt Case, to which I have referred; and then the Streitwolf Case, which was precisely like this, except that Streitwolf did not remain steadily in Dakota during the time required by the statute. He went into the Yellowstone Park. He made a summer excursion of it, and did not live as closely and steadily in Dakota as this defendant did. But I held that it was all a fraud on his wife from beginning to end, and the court of errors and appeals sustained me.
But now let us look at the other ground, viz. fraud in inducing the court to make the decree. The facts that I have stated with regard to this defendant turning his wife out of doors are not contradicted. They are admitted by him, by his not going on the stand, or bringing a single witness to contradict them. It is not a case where there is conflicting evidence. The evidence is all one way; the facts are admitted. Now, he went to Fargo, and swore that his wife deserted him. I have found that he therein told a willful and deliberate falsehood. Now, what is the effect of that? Grant now that the court had jurisdiction; suppose his wife had appeared. It was held in Herbert v. Herbert, 49 N. J. Eq. 70, 22 Atl. 789, and, on appeal, at page 566, 49 N. J. Eq., and page 366, 25 Atl., and in First Baptist Church v. Syms. 51 N. J. Eq. 363, 28 Atl. 461, that that sort of fraud would invalidate the judgment. Herbertv. Herbert arose out of an attachment taken out by a man against his brother, I think, and levied on lands in Monmouth county, and the plaintiff obtained a report of an auditor in favor of his claim, and sold the land, and the question came up in the court of chancery, what title passed by that proceeding? Vice Chancellor Van Fleet went into all the facts, and showed that the auditor's report was based on an old debt that had been outlawed for 20 years, and he held the title was bad. The ground of his decision was that the plaintiff in attachment had obtained a report by false swearing,—imposition upon the auditor. The court of errors and appeals affirmed that decision on the ground of fraud; that it was a fraud practiced by the plaintiff by false swearing, or what not, before the auditor. Then the question came up again in the case of First Baptist Church v. Syms, where the Baptist Church had a legacy under the will of a man named Syms, and the executors let a suit be brought against the estate on a false claim, and did not defend it. and a large judgment went against the estate, which was about to sweep the whole estate, and cut the church out. The church sued for its legacy, and set up that this judgment was obtained by fraud, by false swearing, and the court of errors and appeals held that the judgment was a nullity; and the same was again distinctly held in the Magowan Case.
So, on both grounds here this petitioner is entitled to succeed. In the first place, I hold there never was anything like a domicile in Dakota. It is not an exception to the rule that the service must be within the territorial jurisdiction,—service of process. There was no domicile there. In the second place, I find, as a matter of fact, that this defendant imposed upon and practiced a fraud on the court in inducing the court to believe there was a domicile; and, in the third place, he practiced a fraud on the court on the merits in swearing to a deliberate willful falsehood. Therefore the complainant is entitled to relief. She is entitled to a decree of divorce, and is entitled to alimony, and the only question is as to the amount of the alimony.