) The New Jersey decree being valid in that State, it must be recognized and given effect in this State under the full-faith-and-credit clause of the United States Constitution. ( Atherton v. Atherton, 181 U.S. 155, 164; North v. North, 47 Misc. 180; affd., 111 App. Div. 921; appeal dismissed, 192 N.Y. 563.) The fact that the Domestic Relations Court reached the same result as might have been reached by the Supreme Court under section 473 of the Civil Practice Act does not mean that the former court rendered or purported to render a declaratory judgment under that section; it merely found the marital status of the parties as a fact, and on that finding vacated its earlier order.
(2) Relevant changes imposed by Williams v. North Carolina. (a) Prior to Williams v. North Carolina this court was bound by the settled New York rule that, except in cases coming squarely within North v. North ( 47 Misc. 180, affd. 111 A.D. 921, appeal dismissed, 192 N.Y. 563), no recognition would be accorded to the judgment of a sister State which purported to dissolve against a resident of New York a marriage between spouses whose matrimonial domicile had been in this State and which judgment was not based on voluntary appearance or personal service within the other State where it was rendered. Williams v. North Carolina imposes a superseding rule — mandatory on every New York State court because predicated on a Federal constitutional ground — that the circumstances that the other spouse remained in the original matrimonial domicile and did not appear in the suit, but was served only by publication, do not warrant refusal to apply the full faith and credit clause to a default divorce decree granted, on due constructive service, in the State where the other spouse had acquired a bona fide separate domicile.
The res would not continue under such circumstances within the jurisdiction of the State of New York. North v. North ( 47 Misc. 180, 181, affd. 111 App. Div. 921) does not apply in this case. In that case, the court held that where a person is abandoned, that person may establish domicle elsewhere in another State, and said: "On the contrary, the plaintiff severed and terminated the matrimonial domicile here by abandoning the defendant, and when the defendant left the state they had no matrimonial domicile here.
In such situations the wife, by force of necessity, must establish a separate domicile, and her act in so doing accomplishes for practical purposes a removal of the marital res sufficient to authorize the court possessing jurisdiction at the domicile so established by her to exercise authority over it. ( Gray v. Gray, 143 N.Y. 354, 359; Hunt v. Hunt, 72 id. 217, 242, 243; Cheever v. Wilson, 9 Wall. 108, 124; Post v. Post, 149 A.D. 542, 546; affd., 210 N.Y. 607; Kaufman v. Kaufman, 177 A.D. 162, 163; North v. North, 47 Misc. 180, 181; affd., 111 A.D. 921.) The performance of such acts by the present decedent is inferentially demonstrated by the affidavit of the first wife on this application.
Since that State in its public policy permits the granting of a decree under circumstances presented by this record, this State will recognize its decree as matter of comity and not because of constitutional constraint to do so. Nothing in the so-called special New York rule on divorces operates to the contrary. ( Hubbard v. Hubbard, 228 N.Y. 81; Powell v. Powell, 211 A.D. 750; Ball v. Cross, 231 N.Y. 329, 331; Gould v. Gould, 235 id. 14, 25; Richards v. Richards, 132 Misc. 551; affd., 225 A.D. 726; North v. North, 47 Misc. 180. Compare Restatement of the Law of Conflict of Laws, § 113.) Accordingly it is held that the Florida divorce is valid and that at the time of her death deceased was validly married to John Trippodo.
The State of Ohio, therefore, became his permanent domicile as well as the constructive domicile of the defendant and, ergo, the matrimonial domicile of the defendant and her husband, Niberg. ( North v. North, 47 Misc. 180; affd., 111 A.D. 921; appeal dismissed, 192 N.Y. 563; Gilson v. Airy, 181 A.D. 761; Hood v. Hood, 11 Allen, 196; Burlen v. Shannon, 115 Mass. 438.) The marriage of defendant and Niberg was, therefore, legally dissolved by the judgment of a competent court of the State of Ohio, to which this court accords full faith and credit.
A divorce granted in the State of his domicile upon constructive service, without her appearance, is valid. ( North v. North, 47 Misc. 180; 111 A.D. 921; 192 N.Y. 563; Dean v. Dean, 241 id. 240, 244.) As a matter of fact, Harriet McCoon Rocco (now Combs) was not living in the State of New York in August, 1922, when publication was had of the process issued by the Pennsylvania courts, but at that time she was living in South Dakota where she had gone with the intention of not returning to New York State to live.
In the cases of Dean v. Dean ( 241 N.Y. 240) and Winston v. Winston (165 id. 553) the Court of Appeals referred to but did not pass upon the question as to what attitude the courts of this State would adopt in a case where a decree of divorce was obtained in a foreign State where the husband and wife were living separate and apart by consent, so that the question has never been definitely determined by the Court of Appeals of this State, but the trend of judicial decisions seems to clearly indicate that the courts of this State will not give effect to a decree of divorce of a foreign State which did not have jurisdiction of the matrimonial domicile of the parties at the time it was granted. The cases of North v. North ( 47 Misc. 180) and Kaufman v. Kaufman ( 177 A.D. 162) are distinguishable from the cases above cited. In the North Case ( supra) the parties were domiciled in New York.
Andrews v. Andrews, supra. The question of good faith was not involved in the case of North v. North, 47 Misc. 180; affd., 111 A.D. 921, relied upon by defendant. The defendant there went to California for the purpose of actually and in good faith acquiring a permanent domicile and he remained for three years.
Defendant claims, and plaintiff denies, that their separation in December, 1914, was due to her cruelty which justified him in leaving her. North v. North, 47 Misc. 180, is relied upon by defendant to support his defense that the Maine decree is a bar to this action. In that case plaintiff abandoned defendant and refused to live with him.