Summary
holding that "[i]t is an undisputed position of all jurists . . . that, of his own accord, proprio marte, the minor cannot change his domicil" (citing Phillimore on Domicil, at 37)
Summary of this case from Shim v. Rutgers-The State UniversityOpinion
10-27-1911
HESS v. KIMBLE
John H. Switzer, for petitioner. J. Fithian Tatem, for defendant.
Petition by William H. Hess, Jr., by his next friend, against Madaline Kimble, for annulment of marriage. Dismissed.
The petition in this case is filed in behalf of William H. Hess, Jr., a minor, by his next friend, to annul his marriage to defendant on the ground that he was under the age of 18 at the time of said marriage, and that he has not, since arriving at that age, confirmed the marriage.
The petition is filed under the divorce and annulment act of 1907 (P. L. 1907, p. 474), which act provides that a decree of nullity of marriage may be rendered "at the suit of the husband when he was under the age of 18 at the time of the marriage, unless such marriage be confirmed by him after arriving at such age."
At the final hearing, the evidence fully established the facts that petitioner and defendant were married on February 19, 1910, at Camden, N. J., at which time petitioner was between 16 and 17 years of age (the date of his birth being April 27, 1893), and that the marriage has not been confirmed by petitioner since arriving at the age of 18 years. The petitioner, therefore, is entitled to a decree of nullity, provided this court has jurisdiction.
The jurisdictional provisions of this statute are: "For purposes of annulment of marriage jurisdiction may be acquired by personal service Of process upon the defendant within this state when either party is a bona fide resident of this state at the time of the commencement of the action."
The evidence discloses that at the time of the marriage ceremony petitioner and defendant resided with their respective parents in the city of Philadelphia, Pa., in which city the respective parents were domiciled; that petitioner and defendant went to Camden, N. J., on February 19, 1910, and were there married on that day, and at once returned to the homes of their respective parents in Philadelphia; that they did not acquaint their parents with the fact of their marriage until about one week later, when they disclosed that they were married, and that defendant was pregnant; that between the day of the marriage and the day their marriage was disclosed petitioner called upondefendant in the evenings at the home of her parents and enjoyed matrimonial intercourse with her; that during the week following the disclosure of the marriage great consternation existed in the respective families of petitioner and defendant touching the course to be pursued, the parents of petitioner refusing to permit petitioner to receive defendant as his wife, and the parents of defendant insisting that their daughter should be permitted to enjoy her matrimonial rights, and threatening litigation in her behalf; that under these conditions the father of petitioner sent him to Belmar, N. J., where he has since boarded with relatives. The date of petitioner's departure from Philadelphia, Pa., to Belmar, N. J., was March 9, 1910. The date of the filing of the petition for annulment was March 26, 1910. At the time petitioner went to Belmar, he was less than 17 years of age, and entirely without funds. He has remained there until this time, and has been employed a portion of the time, and has applied his earnings to the payment of his board. From time to time it has become necessary for his father to contribute money for the payment of petitioner's board.
It is claimed, in behalf of petitioner, that his primary reason for going to Belmar was his ill health.
John H. Switzer, for petitioner.
J. Fithian Tatem, for defendant.
LEAMING, V. C. (after stating the facts as above). I am entirely satisfied that this court is without jurisdiction to entertain the petition filed in this suit, for the reason that neither petitioner nor defendant was a bona fide resident of this state at the time the petition was filed.
The term "resident," used in the several successive legislative acts of this state which confer jurisdiction on this court in suits for divorce and annulment of marriage, has been uniformly recognized as including not only the factum of residence, but also the animus manendi; the residence required by our statute is the equivalent of domicile. Williams v. Williams, 78 Atl. 693; Coddington v. Coddington, 20 N. J. Eq. 263; Harral v. Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17; McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Sweeney v. Sweeney, 62 N. J. Eq. 357, 50 Atl. 785; Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533; Grover v. Grover, 63 N. J. Eq. 771, 50 Atl. 1051; Hunter v. Hunter, 64 N. J. Eq. 277, 53 Atl. 221; Mason v. Mason, 69 N. J. Eq. 292, 60 Atl. 337; King v. King, 74 N. J. Eq. 824, 71 Atl. 687, 135 Am. St. Rep. 731.
It is apparent that petitioner cannot be regarded as having been a bona fide resident of this state, within the meaning of our statute, at the time of the commencement of this suit. As a minor, the domicile of petitioner was presumptively that of his parents. The evidence discloses no emancipation upon the part of his parents. On the contrary, petitioner has manifestly at all times been under the control and subject to the direction of his father; he has been and now is a member of his father's family in every essential aspect, except that of physical presence; his home is his father's home; at the time the petition was filed, petitioner was boarding with relatives in Jersey at the expense of his father, and was not in this state as the result of any independent exercise of his own will; the father, at his own instance, procured a lawyer to institute this suit in petitioner's behalf, and directed petitioner to go to the lawyer and sign the petition. Under such conditions, it is impossible to regard petitioner as a bona fide resident of New Jersey within the meaning of our statute. Chancellor Runyon, in Blumenthal v. Tanneholz, 31 N. J. Eq. 194, adopting the view expressed in Phillimore on Domicile, states the law of domicile of a minor to be as follows: "The domicile of the legitimate unemancipated minor who is not sui juris, and whose will, therefore, cannot concur with the fact of residence, is, if his father be alive, the domicile of the latter. Phillim. on Dom. 37. It is an undisputed position of all jurists, says that writer, that, of his own accord, proprio marte, the minor cannot change his domicile. See, also, Story on Confl. of Laws, § 46. The burden of proof to establish the change of domicile on the part of the minor is on him. Id. § 47." See, also, Dennysville v. Trescott, 30 Me. 470; Inhabs. of Charlestown v. Inhabs. of Boston, 13 Mass. 469; Overseer Washington v. Overseer Beaver, 3 Watts & S. (Pa.) 548.; Taylor v. Jeter, 33 Ga. 195, 81 Am. Dee. 202; Marks v. Marks (C. C.) 75 Fed. 321.
Tile evidence in this case also strongly indicates that neither petitioner nor petitioner's father entertained any thought or purpose of regarding this state as petitioner's permanent home until a day or two before the petition was filed, when petitioner's father ascertained from a lawyer of this state that if petitioner were a bona fide resident of this state relief could be procured from our courts which could not be procured from the courts of Pennsylvania with that state as petitioner's residence. It seems, indeed, more than probable that the determination of petitioner and his father to regard this state as the residence of petitioner was for the purpose of procuring the benefit of our statute. It seems needless to state that if petitioner's sudden determination to regard himself a resident of this state was only for the purpose of procuring the benefit of our statute, no relief can be granted.
I will advise a decree dismissing the petition.