Opinion
07-07-1934
KNAPP v. KNAPP.
Freeman Woodbridge, of New Brunswick, for the complainant.
Syllabus by the Court.
1. Bill for separate maintenance under section 26 of our Divorce Act (2 Comp. St. 1910, p. 2038, § 26) will not lie where personal service is not obtained upon the defendant within this state and where he has no property subject to sequestration.
2. One who is domiciled with his family in this state and abandons them, they continuing their residence herein, will be restrained from prosecuting a suit for divorce in a foreign jurisdiction.
3. Injunction will issue in such an instance, even though personal service is not obtained upon the defendant within this state. Notice by way of order to show cause and to answer, served upon the defendant personally without this state, is sufficient to confer jurisdiction over the defendant.
Suit by Ethel Breeder Knapp against Julius Knapp.
Decree in accordance with opinion.
Freeman Woodbridge, of New Brunswick, for the complainant.
GROSMAN, Advisory Master.
Complainant sues for separate maintenance under section 26 of our Divorce Act (2 Comp. St. 1910, p. 2038, § 26), and also to restrain the defendant from prosecuting a suit for divorce in the State of Morelos, in the Republic of Mexico. The parties were married on the 27th day of October, 1929, at the city of Elizabeth, in this state. They took up their domicile in the borough of Highland Park, Middlesex county, in this state, and continued to reside there until the 14th day of October, 1932, when the defendant deserted and went to New York, where he engaged in the plumbing business. The complainant has continued to reside in this state. Subsequent to his desertion the complainant caused the defendant's arrest on a charge of nonsupport and he was ordered to pay her the sum of $4 per week by our Middlesex county court of quarter sessions and, in addition thereto, was placed on probation for the term of five years. He continued to pay the sum ordered until December 19, 1933.
In November, 1933, the complainant was served with what purports to be process in a suit for divorce instituted by the defendant against her in the State of Morelos, Mexico. She thereupon filed her bill in this cause. No service has been effected upon the defendant within this state, but an order was made herein on the 19th day of February, 1934, requiring the defendant to appear, plead, answer, or demur to the complainant's bill of complaint on or before the 20th day of April, 1934. This order was served upon the defendant personally in the state of New York. He has failed to appear or defend. The complainant has abandoned her prayer for separate maintenance conceding that, personal service not having been obtained upon the defendant within this state, such relief cannot be afforded her. She prays, however, for a decree restraining the defendant from prosecuting his Mexican suit. I think she is entitled to this relief.
The parties having established a bona fide domicile within this state, this court has jurisdiction both of the defendant and of the marital res. The Mexican action instituted by the defendant is seemingly a mail-order proposition. It is common knowledge that Mexican divorces may be obtained by mail even where neither of the parties have ever set foot on Mexican soil. Such suits are palpable frauds and decrees rendered thereunder are worthless.
Even though process was not personally served upon the defendant within this state, I think this court has jurisdiction to grant the relief prayed for under the order of February 19, 1934, which was served upon the defendant personally in the state of New York and required him to appear and answer or otherwise plead to the complainant's bill on or before the 20th day of April then next. Such orders are authorized by section 14 of our Chancery Act (1 Comp. St. 1910, p. 415, andsection 13 as amended by P. L. 1912, p. 224 (Comp. St. Supp. § 33—13). I think this case comes squarely within the doctrine of Kempson v. Kempson, 58 N. J. Eq. 94, 43 A. 97, affirmed in 63 N. J. Eq. 783, 52 A. 360, 625, 58 L. R. A. 484, 92 Am. St. Rep. 682.
I will advise a decree restraining the defendant from further prosecuting his suit in Mexico. If a decree has been entered therein, I will advise a decree declaring such foreign decree fraudulent and of no effect.