Opinion
Decided January 23d 1933.
1. Where the court in which the divorce was obtained (in this case, Nevada), has jurisdiction over the subject-matter and its powers are limited to the granting of relief to a resident of the state, its adjudication that the complainant is such a resident is final, unless it is made to appear that the court was led to this conclusion by fraud perpetrated upon it by the complainant. That fraud is a fact that will never be presumed, but must always be proved clearly and convincingly.
2. Held, that the charge that fraud was perpetrated by the defendant husband on the Nevada court in obtaining a divorce on the ground of cruelty against his wife, has neither been convincingly nor clearly proved.
On appeal from a decree of the court of chancery advised by Advisory Master Reed, who filed the following opinion:
"This is a bill for maintenance under the statute, which charges that complainant was married to defendant on December 25th, 1923; that on October 18th, 1930, defendant left complainant; that on March 13th, 1931, complainant was served with summons and complaint in an action for divorce brought by the defendant against the complainant in Reno, Nevada, but that the decree of the Nevada court is void because it was fraudulently obtained, and that defendant has failed to support the complainant, to which the defendant has answered, admitting that he separated himself from the complainant on the date alleged in the bill; that he has not supported her; that he obtained a divorce from her in Nevada, and asserting that he was justified in leaving her because of her treatment of him, she having been guilty of extreme cruelty toward him, and that, because of the decree of the court in Nevada, she is no longer his wife. He also filed a cross-petition in which he repeats the charges of cruelty, asking this court to decree a divorce for that cause in the event the Nevada decree is held to be invalid.
"The complainant is a tall, aggressive woman, apparently above fifty years of age. The defendant and cross-petitioner is a man nearly twenty years older, under medium height and apparently of a mild disposition. The complainant was his third wife; he her second husband. He has two children, a son and a daughter, by his first wife; one, a son, who is now about twelve years of age, by his second wife, and none of the marriage to complainant. At the time of his marriage to complainant, defendant's younger son, then about three years of age, lived with him and almost immediately became a cause of dissention. When the child had reached the age of four and one-half years, defendant, in an effort to lessen the domestic tension, sent him to a school in Pennsylvania to be cared for. Thereafter, the visits of the child to his father were very infrequent, and when they did occur they were invariably the cause of fresh quarrels. The last visit of the child to the father occurred in 1929 at Bayhead, where the complainant and defendant spent the summer months. The trouble on this occasion grew out of a domestic incident of a not very serious nature, but resulted in the father determining to take the child to the home of his older son who lived in New Hampshire.
"The complainant alleges that the defendant then said he would not return to her. In any event, when he attempted to get his trunk or suitcase in which to take his and the boy's clothes, the complainant refused to allow him to do so and so thorough was her opposition that the father and son were obliged to leave without any clothing except what they wore.
"After a short time, defendant returned to complainant, but he contends that the constant abuse to which he claims to have been subjected by complainant had a very disastrous effect upon his health; his digestion suffered and he became extremely nervous.
"On October 18th, 1930, while complainant was absent on a visit to her brother, defendant went to the residence of his son by his first marriage in New Hampshire. He was apparently far from well, but after a few weeks in New Hampshire he had in a measure recovered. In December, 1930, he left New York for San Francisco. After stopping at Chicago and Cheyenne he reached Reno on the 9th day of December, 1930. He says he concluded to remain there, and after three months had elapsed, that is to say, on the 10th day of March, 1931, he filed a petition for divorce from the complainant for extreme cruelty. After service of summons by publication and substituted service on the complainant in Newark, she having interposed no defense to the Nevada suit, a decree was entered thereon on the 24th day of April, 1931, granting him a divorce on the ground alleged.
"A week or two later, the defendant, Mr. Ballentine, left Reno for California. At the time of his leaving New York, he had bought a ticket through to San Francisco with stopover privilege, so that he still retained the balance of this ticket and used it to go to San Francisco. He then went to Los Angeles. While in Los Angeles he received a letter from his son inviting him to visit in New Hampshire for a time, so he came east.
"Almost immediately upon his return east, he came to Newark to execute an assignment of a mortgage, and went from there to New Hampshire. The bill of complaint in this cause was filed on July 18th, 1931. The defendant maintains that the State of Nevada is his residence; that he intends to return there and contemplates purchasing a ranch near Reno and living upon it, but he has been unable to follow out this plan because of the pendency of this suit and the need to remain here to defend it.
"No direct proof has been submitted to contradict these assertions of defendant, but it is claimed that the fact that he went west shortly after the last controversy with the complainant; that, having arrived in Reno, he filed his petition for divorce as soon as the statutory time had elapsed; that he left there almost immediately after the decree was entered, continued his trip to California and returned east and has not since been back to Reno, is conclusive evidence that his residence there was not bona fide, and that therefore he obtained a decree of divorce in Nevada by fraud practiced upon that court.
"In Schneider v. Schneider, 103 N.J. Eq. 149, 150, Vice-Chancellor Leaming, in discussing the force to be given to a decree of divorce obtained in the courts of Nevada, held: `But while the evidence established that defendant herein deserted petitioner herein in this state and strongly suggests that he subsequently went to Nevada in order to obtain a divorce from her for the cause there alleged by him, which cause [extreme cruelty] necessarily occurred, if at all, in this state, and also strongly suggests that defendant herein did not obtain a bona fide residence in Nevada, I am unable to determine that the evidence establishes either of these material facts with that degree of certainty essential to support an affirmative finding to that effect.'
"In Pahy v. Pahy, 107 N.J. Eq. 538, it was alleged that the husband went to Nevada solely for the purpose of obtaining a divorce without intention of becoming a permanent resident, facts which he concealed from the Nevada court. The court there said (at p. 540): `Our examination of the proofs sent up with the appeal satisfies us that they do not support this contention. It may be conceded that they raise a suspicion that the purpose of the husband in going to Nevada was to obtain a divorce and that he had no intention of becoming a permanent resident of that state; but mere suspicion is not enough to justify treating the decree of the Nevada court as a nullity. The law is settled in this state that where the court in which the divorce was obtained has jurisdiction over the subject-matter and its powers are limited to the granting of relief to a resident of the state, its adjudication that the complainant is such resident is final, unless it is made to appear that the court was led to this conclusion by fraud perpetrated upon it by the complainant; and that fraud is a fact that will never be presumed, but must always be clearly and convincingly proved.'
"The evidence produced in the case before us does not distinguish it from the rule laid down in the cases above cited, and the charge that fraud was perpetrated upon the Nevada court by the defendant, Allen D.B. Ballentine, has not been either clearly or convincingly proved."
Mr. E. Garfield Gifford, for the appellant.
Messrs. Kalisch Kalisch ( Mr. Samuel Kalisch, Jr., of counsel), 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 Reed.
For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, HEHER, KAYS, HETFIELD, WELLS, KERNEY, JJ. 13.
For reversal — None.