Opinion
Decided January 22d 1937.
1. A bill to restrain the defendant from proceeding with his divorce suit in the United States of Mexico cannot be entertained by the court of chancery where neither party is domiciled in this state. The marriage res upon which the proposed relief must operate is not present.
2. Personal service upon defendant of process while he is in this state does not supply the essential res so as to give the court of chancery jurisdiction to restrain his Mexican divorce action. Greensaft v. Greensaft, 120 N.J. Eq. 208, followed.
3. The bill here, which also prays for separate maintenance, cannot be retained as an independent bill for maintenance under the statute because it does not allege defendant's neglect or refusal to support complainant. Such an allegation is essential. The fact that the defendant instituted suit for divorce under the circumstances alleged in the bill is not to be judged equivalent in force to the statutory requirement of neglect or refusal to support for jurisdiction in a maintenance suit.
On appeal from a decree of the court of chancery advised by Advisory Master Rogers, who filed the following opinion:
"The bill of complaint seeks to restrain defendant from proceeding with his divorce suit pending in the United States of Mexico, and prays for separate maintenance. Defendant moves to strike the bill for lack of jurisdiction urging it appears upon the face of the bill that (1) the situs of the marital res has never been in this state, (2) neither of the parties has ever been domiciled in New Jersey, and (3) there has been no failure nor refusal to support complainant as is prescribed by our statute essential for a cause of action for maintenance in addition to abandonment.
"Complainant admits the bill substantially does so aver, but submits the objections do not control because the bill is addressed to the inherent power of equity to act in personam upon persons within its jurisdiction by restraining them from using the courts of another state to execute an inequitable purpose. Under that principle it is urged that neither residence in the sense of domicile, nor presence of the marital res is a jurisdictional element. The essentials are jurisdiction over the person of defendant and allegation of inequitable purpose in the contemplated, or instituted, suit in the courts of another jurisdiction. Upon the maintenance phase complainant urges retention of the bill despite no allegation of default in support upon the principle that comity requires enforcement wherever defendant may be found of complainant's judgment for separate maintenance based upon abandonment obtained in the New York supreme court, and by spelling out a refusal to support in fact as an intendment necessarily expressed by his act in seeking an absolute divorce decree.
"Upon careful examination of the opinion of the court of errors and appeals in Greensaft v. Greensaft, 120 N.J. Eq. 208, I am convinced that the bill as to restraint of the pending suit must be dismissed for want of jurisdiction. The principles so urgently stressed by counsel for complainant do not apply. The bill cannot be entertained as complainant contends because the absence of domicile of either party in this state conclusively shows that the res is not present upon which the proposed relief must operate. As in the Greensaft Case the defendant here was personally served with process within this state. Of course, that does not supply the essential res. Nor is it legal distinction that this bill seeks restraint from proceeding with a pending suit in a foreign state and that the Greensaft appeal dealt with a decree annulling the divorce judgment obtained in another state, and directing defendant to apply to the court there to vacate the decree. The ground of appeal sustained (as the opinion states) was that this court was without jurisdiction to entertain the bill, and the judgment was a reversal of the decree appealed from, and it was observed that `the bill should have been dismissed,' and it was ordered dismissed. Now the original bill in the Greensaft Case was for restraint from proceeding with the then pending suit, and it was that bill which judgment of the appellate court dismissed. It may have been supplemented to add allegations and prayer for relief consonant with the changed conditions pending suit arising from the fact that defendant proceeded with her suit to decree though under pendente lite restraint, but the bill retained its original force. It was not thereby supplanted as would have been so upon an amendment to state a different cause existing from that when the original bill was filed. If this distinction is to prevail obviously jurisdiction once present was lost by defendant's proceeding with the suit to decree in disobedience of the preliminary restraint. That proposition is plainly untenable in my judgment. The significance of the appellate judgment in dismissing the bill is inescapable. It was necessarily conclusive of the original bill upon the ground that there was no jurisdiction, for otherwise it seems reasonable to assume that upon the facts present, though the decree might have been reversed, the cause would have been remitted for other and proper relief.
"The bill cannot be retained as an independent bill for maintenance under the statute because it does not allege defendant's neglect or refusal to support complainant. That such element is essential to such a cause of action as well as abandonment needs no citation of authority. That defendant may have instituted suit for divorce under the circumstances charged in the bill is not to be judged equivalent in force to the statutory requirement for jurisdiction in a maintenance suit of neglect and refusal to support. I am unaware of any authority for enforcing complainant's judgment for maintenance by comity save upon established grounds. None such appear in the bill nor have been alluded to in argument. The bill should be dismissed."
Mr. George S. Silzer, for the appellant.
Mr. Samuel Tartalsky, for the respondent.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court of chancery by Advisory Master Rogers. For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, BODINE, PERSKIE, HETFIELD, WELLS, WOLFSKEIL, COLE, JJ. 9.
For reversal — CASE, HEHER, DEAR, RAFFERTY, JJ. 4.