Opinion
03-30-1911
LEVERIDGE v. LEVERIDGE.
Walter L. Hetfield, for the motion. William A. Coddington and W. Holt Apgar, opposed.
Action by Rowland H. Leveridge against Ruth C. Leveridge. On motion for leave to file a bill of review to vary a divorce decree. Motion denied, and petition dismissed.
Walter L. Hetfield, for the motion.
William A. Coddington and W. Holt Apgar, opposed.
HOWELL, V. C. The petitioner brought suit for divorce in this court on December 30, 1908. The defendant was a nonresident and was brought in by publication. Her time to answer expired on April 5, 1909. She omitted to answer, and the usual order of reference was made on May 11, 1909, after which time the cause proceeded ex parte. A decree nisi was entered on November 5, 1909, and a final decree on May 11, 1910. The motion is for leave to file bill of review to vary this decree, upon the ground that the defendant was led to believe that the divorce suit had been discontinued and that the decree was therefore obtained against her by fraud.
Some time after the filing of the petition for divorce, the parties had a conversation by telephone. The petitioner says it took place on April 12th, while the respondent says it took place on March 12th. At any rate, in this conversation the petitioner stated to his wife that he was withdrawing, or was about to withdraw, or had withdrawn,the petition, and so gave her to understand that the proceeding was ended. On April 14th he wrote a letter to his wife in which he told her that he was withdrawing all actions at law relating to differences between them, that he realized he owed a duty to her and would from that time on endeavor to do it, that he had been in the wrong, and that she had also, that he was a changed man, and that he gave her the opportunity practically of dictating her own terms for a settlement of their differences. They then attempted to make a settlement, but did not succeed. They met on April 24th at her place of business in New York for the last time. On the following Monday, April 20th, he wrote a letter to her in which he said: "As stated Saturday afternoon, I repeat that my action at law is not withdrawn and I intend to push it to a finish. I doubted your statement that you did not intend to tight the case, and while I stated last week I had withdrawn this action, I feel now that I am not under any moral or spiritual obligation to you because of the contemptible actions on your part." The mailing of this letter is testified to by Mr. Leveridge and by a woman whom he afterwards married. I cannot but believe that this letter was sent to the wife, and that she received it. She makes no mention of it in her moving papers, and there is no express denial in the papers of its receipt. If she did receive it, it was notice to her that the proceeding was going on, and if she intended to make a defense it was her duty then to take immediate steps toward filing an answer.
I am the more convinced of the receipt of the letter by her from the statements made by Mr. Donley and Mrs. Sears, whose affidavits are submitted on behalf of the husband. If these affidavits are true, and they seem to me to be so, and to be in consonance with all the other facts in the case, then the wife not only had full knowledge of the divorce proceedings, but stated that she did not intend to make any defense. She evidently knew that the depositions of witnesses were about to be taken at Trenton, and she also knew the name of at least one of the witnesses who was expected to appear against her, and she inquired of that witness subsequently what testimony he gave against her on that occasion. In May or June of 1909 she stated to another witness whose deposition was before the court on this motion that she had not interposed any defense in the divorce suit, and that she did not intend to; that she thought at first she would, but afterwards decided not to do so.
I am driven to the conclusion that there was no fraud practiced on the wife; but, quite on the contrary thereof, it seems to me that she is now attempting to commit a fraud upon her former husband, and under these circumstances it would be improper to permit her to litigate the questions which she raises by filing a bill of review. In fact, it appears on the face of the papers now before me that she could not succeed on any such bill, and it would therefore be futile to give her an opportunity to open the litigation.
Applications of this sort appeal to the discretion of the court. In this case that discretion should be exercised against the wife for the reason that she sat still and said nothing during the whole pendency of the divorce suit, and then permitted her husband to marry again without interposing any objection, and thus the rights of a third party have intervened. The remarriage of one of the parties was considered to be an important factor in the exercise of the court's discretion in the case of Watkinson v. Watkinson, 68 N. J. Eq. 643, 60 Atl. 931, 69 L. R. A. 397.
I will advise a decree denying the motion and dismissing the petition.