Opinion
02-13-1906
McGUINNESS v. McGUINNESS.
Clarence Kelsey, for complainant. Howard Carrow, for defendant
(Syllabus by the Court.)
Bill by Mary Ellen McGuinness against Thomas McGuinness for divorce. On rule to show cause why service of subpoena and orders for alimony and counsel fees should not be set aside. Discharged.
Clarence Kelsey, for complainant. Howard Carrow, for defendant
MAGIE, Ch. On July 7, 1899, Mary Ellen McGuinness filed her bill in this court against her husband, Thomas McGuinness, praying for a divorce a mensa et thoro on the ground of extreme cruelty, for the custody of three of the four children of the marriage, and for the support of herself and the children whose custody she sought. A subpoena was issued upon the bill, returnable August 1, 1899, and was returned served by the sheriff of Hudson county. On the 7th of August, 1899, an order, returnable on August 14, 1899, was made, to show cause why an order should not be made for alimony pendente lite and counsel fees. On the hearing of that order a solicitor of this court appeared specially for the defendant, for the purpose of objecting to the sufficiency of the service of the notice of that application. Upon the proofs it was found that the service was good and sufficient for the purpose of the application for alimony and counsel fees, and an order was made directing payment. That order was made on September 11, 1899. On January 15, 1900, an order was made, upon the motion of a solicitor and counselor of this court, appearing for the defendant specially for that purpose, and upon the consent of the solicitor and counsel for the complainant, that the subpoena and return of the sheriff, and the order for temporary alimony and counsel fees, and all proceedings based thereon, should be set aside. Thereupon a new subpœna was issued, tested January 15, 1900, which was returned by the sheriff of Hudson county, with an affidavit of nonresidence, and on February 7, 1900, the usual order of publication was made. Notice of this order was shown to have been personally given to the defendant on February 7, 1900, in the manner required by the statute and the rules of court. The defendant having interposed no defense, the matter was referred to a special master. He reported on January 20, 1901. that the complainant had established her right to the relief she sought. On another and supplemental order the same master made an additional report, on March 19, 1901, upon the faculties of the defendant. Thereupon, on May 18, 1901, a final decree was made, decreeing a divorce from bed and board, giving the custody of the children to the complainant, and fixing the sum which should be paid for the future support of complainant and the three children. A certified copy of the final decree, and of the taxed bill of costs, was served on the defendant personally, on July 9, 1901, and a demand was made upon him for the payment of the costs and the amounts ordered to be paid by the decree, and he refused to comply therewith. Thereupon, on September 27, 1901, an order of sequestration was made, and John S. McMaster, one of the masters of this court, was appointed sequestrator. It appears from the records and files of this court that he has taken charge of some of the defendant's real estate, and has received the rents thereof under the authority of his appointment.
On February 24, 1902, the defendant filed a petition in the cause. It was signed by him and a firm of solicitors of this court. The petition set forth the proceedings, the final decree, and order of sequestration, and averred that the defendant was not, when the bill was filed, a resident of the state of New Jersey, and had not been served with process within this state, and for that reason, charged that not only the order for sequestration, but also the final decree should be vacated and set aside. Its prayers were that the enrollment in the cause be opened, that the final decree and all orders in the cause be opened and set aside; that the subpœna and service, and the writ of sequestration be set aside; that the complainant's bill be dismissed, and that the petitioner should have further relief. The petition was accompanied by affidavits. Upon this petition, an order to show cause why its prayers should not be granted, was advised by a vice chancellor upon the motion of defendant's solicitor and counsel. The order was returnable on March 3, 1902, and service of the order was directed to be made. For some unexplained reason, this order was not brought to hearing, and no service, as required, appears. The matter remained in this condition until April 3, 1905, when the present solicitor of defendant applied for, and obtained, an order substituting him for the firm of solicitors previously appearing for defendant, and thereupon, on his motion, another order to show cause why the prayers of the petition of February 24, 1902, should not be granted, was advised by another vice chancellor. That order was returnable on May 1, 1905. The hearing was adjourned to May 9, 1905, and it was then agreed by counsel that it should be heard by briefs, which were furnished about July 1, 1905. On the part of the defendant no affidavits, other than those appended to thepetition; have been presented. On the part of the complainant no affidavits have been presented. From these recitals, it is obvious that the prayers of defendant's petition are altogether too broad. In respect to some of them, there is not disclosed any ground on which they can be granted. By the files and records in the cause, as well as by the admissions of defendant's petition, it appears that the defendant was notified of the pendency of his wife's suit for divorce on the ground of extreme cruelty, in the manner which, under our statute and rules, gave jurisdiction to this court to decree a divorce from bed and board for that cause. He was afforded an opportunity to contest her claim if he desired to do so. He failed to present any defense. Thereupon adjudication was made that the cause alleged was proved, and the divorce asked was decreed.
There can be no question of the power of this court to make such a decree. Felt v. Felt, 59 N. J. Eq. 606, 45 Atl. 105, 49 Atl. 1071, 47 L. R. A. 546, 83 Am. St. Rep. 612. The jurisdiction has been exercised in innumerable cases, from the time of the earliest divorce laws, and no serious question has ever been raised thereon. The power to make such decrees, upon such notice to a defendant, has been declared by our Court of Errors to be conferred upon this court, and it has been recognized as the public policy of the state on the subject of divorce. A résumé of the legislation on the subject is contained in the opinion of Vice Chancellor Pitney in Wallace v. Wallace, 62 N. J. Eq. 509, 50 Atl. 788. When that case came before the Court of Errors, it was there declared that, upon our statute, and service of notice of the suit out of the state of New Jersey, a decree of divorce could be made having extraterritorial force. 65 N. J. Eq. 361, 54 Atl. 433. Nor do I think there is any possible doubt as to the jurisdiction exercised in this case in making a decree respecting the children of the marriage. When courts are empowered to separate husband and wife and to break up the family, in my judgment, it necessarily follows that power is given to make provision for the custody of the óffspring of the marriage thus interfered with. By section 19 of the divorce act of 1874 (2 Gen. St. p. 1269) the Legislature empowered this court, when it decreed a divorce to take order adjudicating upon the care and maintenance of the children, and still broader powers are now conferred by section 19 of the present divorce act (P. L. 1902, p. 507). Jurisdiction to decree a divorce a mensa et thoro was invoked by complainant's bill, and in my judgment, a decree respecting the custody of children of the marriage, may be supported upon the jurisdiction to decree the divorce and as an incident thereto.
Since the decision of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it has been frequently held that a decree awarding alimony cannot be effectually made against a defendant not served with process within the jurisdiction of the court making the decree. It has been declared in this court that while a decree for alimony, which was purely a decree in personam, would be subject to the doctrine of Pennoyer v. Neff, yet it might be otherwise as to such a decree, if based on the control of the matrimonial status, by a court having jurisdiction over that status. Hervey v. Hervey, 56 N. J. Eq. 166, 38 Atl. 767. That was a case in which a wife sought a decree against a husband for support and maintenance, under the twentieth section of the divorce act, and an interlocutory order had been made for temporary alimony. The defendant, not having been served with process, entered a special appearance to move, and did move, to set aside that order. That motion was denied. Upon an appeal from such denial, the order therefor was reversed, upon the ground that, as the defendant had not been brought in by process served, nor proceeded against by publication and notice as a nonresident, no jurisdiction had been conferred by the twentieth section, to make an order for alimony pendente lite on the ground that the defendant owned property in New Jersey. 56 N. J. Eq. 424, 39 Atl. 762. In a subsequent case, a decree for divorce and alimony had been made upon service of a notice of an order or publication, upon the defendant, in the state of his residence, and the defendant, having come into this state, had been seised and held to bail on a ne exeat. The defendant, having moved to discharge the writ and vacate the order for bail, the motion prevailed on the ground that the decree in such a case was purely in personam, and fell within the doctrine of Pennoyer v. Neff. Elmendorf v. Elmendorf, 58 N. J. Eq. 113, 44 Atl. 164.
It will be observed that the case last referred to is one in which the relief primarily sought, was the complete abolition of the marriage relation between the parties. Alimony was sought as an incident of that kind of relief. Among the numerous cases in which the subject I am now considering has been discussed, and in which the doctrine of Pennoyer v. Neff has been applied to judgments or decrees for alimony, I have failed to find any in which the primary relief did not involve the complete severance of the marriage relation. The case before me is of a different character, and the relief sought by this bill of a less stringent nature. It seeks a divorce from bed and board for extreme cruelty. Under the divorce act then in force, this court was empowered, for such a marital offense, to decree a divorce from bed and board either forever thereafter, or for a limited period, as should seem just and reasonable. Upon such decrees, jurisdiction is conferred on the Chancellor to make orders for the maintenance of the wife and children, and to enforce such orders upon the husband's property which can be reached by sequestration. Decreesof divorce from bed and board do not Involve any severance of the marital relation. The parties remain husband and wife. The wife retains her right of dower in the lands of the husband. The husband will not thereby be deprived of curtesy in his wife's lands. Alimony upon such a separation is merely the enforcement of the duty which the husband owes, to support her who is still his wife, and his family. Mr. Nelson declares that an allowance on a decree of separation is equivalent to the award of alimony by the ecclesiastical courts of England upon a decree of divorce a mensa et thoro. 2 Nelson on Divorce, § 902. The distinction between alimony in the two cases seems recognized in the opinion of Mr. Justice Pitney in Lynde v. Lynde, 64 N. J. Eq. 736, 750, 52 Atl. 694, 58 L. R. A. 471, 97 Am. St. Rep. 602. In the case of Bunnell v. Bunnell (C. C.) 25 Fed. 214, which is recognized as a leading case on the subject of the application of the doctrine of Pennoyer v. Neff to decrees for alimony, Mr. Justice Brown suggested that if the state permitted the wife to proceed in her claim for alimony as upon an inchoate lien, the proceeding might be considered as one in rem, and a decree upon a service by publication might be sustained. If it were necessary to the decision of the present motion, I should hold that, considering the peculiar character of this proceeding which leaves the marital relation unbroken and recognizes the right to enforce the husband's duty of support of his wife and family, and the provisions of our statute for enforcing a decree which fixes the amount of such support, upon the husband's property in this state, this decree for alimony, although perhaps not enforceable in another state, is enforceable here.
There is another ground, however, upon which the relief sought by defendant's petition must be denied. It is well-settled doctrine that if a defendant who claims that the court in which the suit is pending has not acquired jurisdiction over him, attacks the jurisdiction, even under a special appearance, he will be held to have submitted himself to the jurisdiction, if under such appearance he seeks some relief upon the merits. The doctrine is recognized by the text-books and illustrated by many cases, the leading case being that of Livingston's Ex'r v. Story,
11 Pet. (U. S.) 351, 9 L. Ed. 746. It was adopted and applied by our Court of Errors to a case where the defendant answered in full on the merits, although he had attempted to reserve an objection to the jurisdiction, which he presented by a plea to the jurisdiction, which had been overruled. Polhemus v. Holland Trust Co., 61 N. J. Eq. 654, 47 Atl. 417. The reason of this doctrine is equally applicable to proceedings to challenge the validity of a judgment on the ground that jurisdiction of the defendant had not been acquired. If, under such proceedings, he ask other relief against the judgment on the merits, he will be held to have submitted himself to the jurisdiction. In Crane v. Penny (D. C.) 2 Fed. 187, Judge Choate, in dealing with an application of a defendant to vacate a judgment taken by default, which included other relief and a stay pending the application, held that the defendant had thereby submitted himself to the jurisdiction, so that all defects therein were cured. In Burdette v. Corgan, 26 Kan. 102. Judge Brewer held that when a party against whom a judgment has been entered, files a motion to vacate it as void, and the motion is based on nonjurisdictional as well as jurisdictional grounds, he thereby enters a general appearance. The doctrine is illustrated by many other cases. Grantier v. Rosecrance, 27 Wis. 488; Anderson v. Coburn, 27 Wis. 558; Alderson v. White (per Dixon, C. J.) 32 Wis. 308; Blackburn v. Sweet, 38 Wis. 578; Dikeman v. Struck, 76 Wis. 332, 45 N. W. 118; Henry v. Henry (S. D.) 87 N. W. 522; Curtis v. Jackson, 23 Minn. 268; Yorke v. Yorke (N. D.) 55 N. W. 1095; Pry v. Han. & St. Jos., 73 Mo. 123.
Defendant's application, which is to vacate, not merely the decree for alimony and its incidents, but the whole decree, although it appears that under the order of publication and service of notice thereof the court acquired jurisdiction to decree divorce and custody of children, must be denied. I come to this conclusion more readily because the case shows that, while the matrimonial domicile was in this state, defendant was guilty of such extreme cruelty as justified his wife seeking the relief afforded by our statute; that although defendant left the state in time to avoid service of process, yet he went only to an adjoining state, and was served there with notice of the pendency of her suit; that although he thus knew of complainant's claim, he made no defense, and after decree and sequestration, waited nearly a year before he filed this petition and procured a rule to show cause, which for three years he failed to bring to hearing, although his property in this state, ample to afford a support for the wife he had illtreated and the children she has to support, was under sequestration, and has only after this lapse of time and the changed circumstances come forward to interpose this technical defense.
As I think defendant is not entitled to any relief, his rule to show cause will be discharged, and his petition will be dismissed.