Opinion
04-01-1899
POTTS v. POTTS.
John R. Hardin, for complainant. Charles B. Storrs, for defendant.
(Syllabus by the Court.)
Bill by Earl Clinton Potts against Annetta S. Potts for a divorce. Complainant allowed to amend bill, and defendant allowed to add demurrer to plea.
The bill sets out the following facts: The parties were married on April 6, 1888, and lived together at Orange, in this state, until July 13, 1896, when the defendant left complainant's residence without his consent, and went to an apartment house in New York City, accompanied by a man named Gill, whose visits she received while living in said house. A deed of separation between the husband and wife was executed on October 19, 1896, by the terms of which he was to pay her $83 a month. As late as December 25, 1896, she was living In Brooklyn. On or about August 2, 1897, she caused to be instituted in the circuit court of the Third judicial district of the state of South Dakota a suit against the complainant for divorce; falsely alleging in her complaint filed in that case that she was then, and had been for upwards of six months next preceding, a resident of the state of South Dakota, in good faith, and setting up as one cause for a divorce that her husband had deserted her on July 30, 1896, notwithstanding the fact that the parties were living apart by virtue of the articles of separation, and that the husband was at that time paying to the wife's trustee the monthly sum of $83. That her bill for divorce set up as a further cause for divorce certain false charges of cruelty, not in themselves a ground for divorce either in the state of New Jersey, or of the domicile of the complainant or defendant, or in the state of New York, if she had a domicile other than that of the complainant; such alleged acts of cruelty having been committed prior to the departure of the wife from the home of the husband. That at the time when the suit was instituted the husband was a resident of New Jersey. That no personal service was made on him of process in said suit, nor did he enter an appearance thereto. That the only notice the husband has ever had ofsaid suit was the service upon him, at his place of business in the city of New York, of what purported to be a copy of the summons and complaint in the divorce suit, and of an order of publication made therein, providing in the alternative for service of said summons by publication, and the mailing of a copy of the summons and complaint to the husband, at No. 109 Cleveland street, Orange, N. J., or, in lieu of such publication and mailing, for the personal service of a copy of said summons and complaint, together with a copy of said order, upon the husband outside of the state of South Dakota. That on September 28, 1897, it was finally adjudged in said cause that the bonds of matrimony between the said parties were dissolved. The bill further charges that the wife did not take up a residence in good faith in the state of South Dakota, and that the South Dakota court had no jurisdiction over the subject-matter of the suit, or, if it had, it had no jurisdiction over the husband, he having entered no appearance to the suit, and the decree had no force beyond the limits of the state of South Dakota. The bill then states that even if the wife did take up such residence in good faith, and the court of that state did acquire jurisdiction by the service upon the husband of the summons and complaint, nevertheless the decree is fraudulent and void; said wife having unlawfully concealed from the said court the existence of the said deed of separation between her and her husband, which deed of separation rendered groundless, as causes for divorce, the charges of desertion and cruelty. The bill then charges that the wife, after the entry of such decree, married Gill, within the state of South Dakota, and returned with him to New York City, where they lived together as man and wife. The prayer is for a divorce because of the adultery of the wife with Gill, for so living together. To this bill the defendant has filed a plea setting up in full the decree of the South Dakota court. The decree finds that the wife was, in good faith, for upwards of six months preceding the commencement of the suit, a resident of South Dakota. It divorces the parties on the sole ground of the extreme cruelty of the husband.
John R. Hardin, for complainant.
Charles B. Storrs, for defendant.
REED, V. C. (after stating the facts). As already appears, the bill is filed to annul a decree of divorce obtained by. the wife, and to get a new decree of divorce upon this bill filed by the husband, on the ground of the wife's adultery. The bill, as also appears, sets out the South Dakota decree, which it prays to have annulled, and then sets up facts about this decree, for the purpose of showing that it should, in this court, be declared a nullity. The defendant simply sets up the South Dakota decree by way of a plea in bar. The question is whether the plea is good. Pleas are of three kinds. The usual kind is known as an "affirmative plea." It sets up a single fact not appearing in the bill, or sets up a number of circumstances all tending to establish a single fact, which fact, if existing, destroys the complainant's case. Then there are negative pleas. The defendant, instead of filing an answer to everything in the bill, is permitted to deny by a plea some particular fact set up in the bill, the nonexistence of which fact strips the complainant of any relief whatever under his bill, notwithstanding the other facts stated therein. Then there is a class of pleas which are neither strictly affirmative nor negative, and so are styled "anomalous." Such a plea can be filed where a complainant, after stating his case, proceeds to set out some fact which exists, or which the defendant pretends exists, which fact, if standing alone, would defeat his suit, and then goes on to state circumstances to show that the existence of such fact cannot be used against him. Thus, where the bill states that there has been an account stated between the parties, or an award of arbitrators, or a former judgment or decree, either of which would bar the suit, and then proceeds to attack the account stated, or award or judgment or decree, by setting up circumstances to invalidate them, such a plea is permissible. The defendant can restate the existence of the account stated, or of the award or judgment or decree, and then deny the impeaching circumstances stated in the bill. The rule applies whenever the object of a suit is to impeach a judgment or decree set up in the bill. Says Mr. Daniell, "Where a bill is brought to impeach a decree on the ground of fraud used in obtaining it, the decree may be pleaded in bar of the suit, with averments negativing the charges of frauds." 1 Daniell, Ch. Pl. & Prac. 605. Where the bill seeks a discovery from the defendant in respect of facts relied on to impeach the decree, the defendant must accompany his plea with an answer covering those facts. The plea in the present case, as already remarked, sets up a previous decree of absolute divorce made in a suit between the same parties. If it merely restated the record of such decree as already stated in the bill, the plea would be clearly bad, for it contains no averments negativing the impeaching circumstances charged in the bill. Story, Pl. § 680. If it be said that the circumstances stated in the bill are insufficient to impeach the decree therein stated, the answer is that in such case the appropriate course of the defendant was to demur to the bill. Id. § 639. The novelty presented by the conditions of the present pleadings is that, while the plea sets up the record of a suit in which a decree was granted which is obviously the same decree which the bill purports to set out, yet the record pleaded differs from that contained in the bill in two important particulars. The plea states two facts not to be found in the bill, namely: First, that the South Dakota court found that the wife had, in good faith, resided in the state ofSouth Dakota for six months preceding the bringing of her suit; and, second, that the decree was granted, not for the desertion, but for the cruel treatment, of the husband. As these facts were material to the bar which the defendant claims, in view of the impeaching circumstances set up in the bill, he was compelled to plead the record in which they appeared. If, again, when pleaded, the decree was not impeached by the circumstances set up in the bill, it seems clear that there was no reason why those circumstances should be negatived by the plea. The question, then, is whether the decree, as thus displayed, so differs from the decree set out in the bill that the nullifying statements contained in the bill, while they may be sufficient to destroy the decree, as it is there stated, are insufficient to invalidate the decree as set up in the plea. One ground for relief stated in the bill is that the only notice the husband had of the South Dakota suit was from a service upon him in New York City of what purported to be the summons and complaint in the suit, and the consequence of the failure of any other service, and of the defendant's nonappearance, was that the South Dakota decree was void. Another ground is that the wife did not take up her residence in good faith in South Dakota; that such residence as she claimed was fictitious, in consequence of which the court never had jurisdiction over the subject-matter of the suit. The third ground is that if the wife did take up such residence in good faith, and the court of that state did acquire jurisdiction by the service upon the husband of the summons and complaint, nevertheless the decree is fraudulent and void; said wife having unlawfully concealed from the said court the existence of the said deed of separation between her and her husband, which deed of separation rendered groundless, as causes for divorce, the charges of desertion and cruelty. It will be perceived from an inspection of the bill that the pleader sets out, as the consequence of the want of legal service of process upon him and his nonappearance, that the South Dakota decree is void outside of South Dakota, and, further as the consequence of want of the wife's residence in good faith for six mouths in South Dakota, that there was no jurisdiction of the court over the subject-matter of the suit or the party, and the decree was therefore void. It further sets out that the decree was fraudulently obtained, because of the concealment from the court of the existence of the articles of separation. It is true that, following these particular statements of fact and the several legal conclusions drawn therefrom, the bill states generally that the decree was entered without jurisdiction over the subject-matter or over the parties, and was induced by fraud and concealment of the wife, and is null and void everywhere except In South Dakota, even if valid there. But these general charges are referable to the previous particular statements of fact, and the legal conclusion drawn in each instance. They are a summary of the legal conclusions already specially claimed from each group of facts, namely, that the decree is void for want of jurisdiction and for fraud, as already displayed.
First, then, as to the charge that the wife had no bona fide six-months residence in South Dakota: As already remarked, the plea sets up a finding (which the bill fails to do) of the South Dakota court that the wife had such residence. It has been held repeatedly that, in the absence of fraud, such a finding by the court of another state is conclusive of the fact of such residence, when it is brought in question here. Fairchild v. Fairchild, 53 N. J. Eq. 678, 34 Atl. 10; Magowan v. Magowan (N. J. Err. & App.) 42 Atl. 330.
Second, as to the charge that a decree has no force outside of the limits of the state of South Dakota, by reason of the nonappearance, to the suit, of the husband: It appearing that he was served personally with the summons and complaint in that suit, the language of Chief Justice Beasley in his opinion in Doughty v. Doughty, 28 N. J. Eq. 581, is pertinent. It is this: "A judgment of divorce, proceeding from a jurisdiction founded on domicile, would not contravene essential relations of natural justice, if actual notice to appear had been served on the defendant, residing abroad." The want of appearance, therefore, to the suit, would not invalidate a foreign decree in this court. As the decree, however, as set out in the bill, in respect to this point, differs in no respect from the decree pleaded, the sufficiency of the facts pleaded in the bill for the purpose of breaking the force of the decree could have been challenged by demurrer to this part of the bill.
The third point is the charge of concealing from the South Dakota court the fact that the parties were living apart under articles of separation. The query is, was the existence of the articles of separation such a material fact in the trial of the divorce proceedings in South Dakota that their presence would have been likely to influence the judgment of the court upon the question of the husband's cruelty? Under the decree as partially stated in the bill the decree of divorce might have been granted either upon the ground of desertion or of cruelty. If the decree had gone upon the ground of desertion of the husband, the articles of separation would have been material evidence to show that the husband and wife were living apart by consent, which would have refuted the notion of desertion. The plea, however, as already stated, shows that the decree went upon the ground of the husband's cruelty. The different effect of the existence of articles of separation upon suits brought for divorce, upon one or the other of these grounds, exhibits the propriety of filing the plea to this part of the bill. When it is shown that the decree was granted upon the ground of the husband's cruelty, the question arises, in what way were the articles of separation material in deciding the right of thewife to a divorce, if the husband's cruelty was proven? The mere fact that the husband and wife agreed to live apart, under articles of separation, does not bar a suit for divorce for cruelty inflicted before the execution of the agreement. Beeby v. Beeby, 1 Hagg. Ecc. 789; Nash v. Nash, 1 Hagg. Consist. 140; Anderson v. Anderson, 1 Edw. Ch. 380; J. G. v. H. G., 33 Md. 401; Fosdick v. Fosdick, 15 R. I. 130, 23 Atl. 140. Of course, articles of separation may contain some stipulation which implies condonation of the cruelty, which, together with other features, would influence the court to refuse a divorce, as in the case of Matthews v. Matthews, 1 Swab. & Tr. 499, where there had been a lapse of eight years, which lapse of time, together with the existence of a deed of separation, was, in the opinion of one of the judges, an indication of the want of probity of the wife in filing the bill, and indicated that the plea was filed for some ulterior purpose. But if there is no covenant in the agreement not to sue, and no expression pointing to a condonation, it has no force whatever as a defense. As was said in Moore v. Moore, 12 Prob. Div. 193, where the suit was brought on the ground of adultery, there is no covenant not to sue, neither is there anything approaching such a covenant; there is no condonation of past marital offenses, and no expressions pointing to condonation. In Fosdick v. Fosdick, supra. Chief Justice Durfee said: "Such an agreement is not inconsistent with divorce, for divorce is only a more absolute separation." In Anderson v. Anderson, supra, Vice Chancellor McCoun said: "A deed of separation cannot be pleaded in bar of a suit for divorce, either previous or subsequent to the act alleged; It is no acquiescence in her injuries." The articles of separation in this case contain no covenant not to sue, nor any stipulation looking towards a condonation of any preceding conduct. On the contrary, there is a provision that the articles shall be void, except as to the third clause, if the parties become reconciled to each other and resume cohabitation, or if their marriage shall be legally dissolved by a court of competent jurisdiction over the parties in the cause of action, for any just cause of divorce other than desertion, whether arising before or after the date of this agreement. By this provision for a partial change in the articles of separation in case of divorce, it negatives the idea of any condonation. In my judgment, the absence of these articles of separation before the South Dakota court could in no degree have Influenced the decision of that tribunal. Therefore the charge that they were fraudulently concealed is insufficient to lay a ground for annulling the South Dakota decree.
The case, however, is argued as if all the facts set up in the bill could be used to support the charge of fraud. It is insisted that the history of the changes in residence made by the wife, the manner she left her husband, her relations with Gill, her residence in New York up to a time shortly before the beginning of the period of the six-months residence in South Dakota, her marriage with Gill, and her return with him to New York immediately after her divorce, are all facts to be taken into consideration for the purpose of showing that the decree must have been fraudulently obtained. But, as I have already remarked, these facts are pleaded for the purpose of showing that there was no residence in the state of South Dakota, and therefore no jurisdiction in the South Dakota court. The pleader has, as the consequence of those facts, directed the attention of the defendant to that particular ground for relief; and the defendant has answered it by pleading the decree, finding that there was a residence. Says Mr. Daniell: "A conclusion of law should not. In general, be averred, but where certain facts are stated, from which it is intended to draw conclusions of law, the bill should be so framed as to give notice to the defendant of the plaintiff's intention to insist on such a conclusion; otherwise, he might not be allowed to do so." 1 Daniell, Ch. Pl. & Prac. 372. In a suit for specific performance, a complainant was not allowed to insist that the defendant had waived his right to inquire into his landlord's title because, although he had stated facts from which the waiver might be inferred, he had not alleged a waiver. Clive v. Beaumont, 1 De Gex & S. 397; Gaston v. Frankum, 2 De Gex & S. 561. "So, in respect to answers, if a pleader sets up facts to establish a particular line of defense, which he represents to be the consequence of those facts, he will not be permitted to use them for the purpose of establishing a different defense from that to which by his answer he has drawn the complainant's attention." 1 Daniell, Ch. Pl. & Prac. 713; Bannister v. Miller, 54 N. J. Eq. 121, 32 Atl. 1026, on appeal, 54 N. J. Eq. 701, 37 Atl. 1117. Inasmuch, therefore, as the facts concerning the wife's residence were pleaded for the express purpose of showing want of jurisdiction, and not fraud, the plea contains a complete answer to this part of the bill.
The plea, I think, should have been accompanied by a demurrer to the part of the bill already pointed out. As the plea is good so far as it is an answer to two of the three grounds alleged in the bill for impeaching the decree, it will stand for what it covers. Story, Pl. § 692. The complainant, if he chooses to do so, can amend his bill; and, if he does not wish to take this course, the defendant can add a demurrer to her plea. Either course can be taken, without costs.