Opinion
July 24, 1928.
Grant E. Neil, for the plaintiff.
Jackson, Herrick, Durkin Leet, for the defendant.
This is an action brought by a second husband for an annulment of his marriage with defendant, upon the ground that a prior divorce obtained in Ohio by defendant's first husband was void.
Defendant and one Niberg married in New York State. Defendant left the bed and board of her then husband without legal justification. That husband, Niberg, later secured employment, established a residence and obtained a decree of divorce from defendant in the State of Ohio by publication. Defendant was not personally served in that State nor did she in any manner appear in that action. Plaintiff and defendant thereafter married in New York State.
"A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living." (Dom. Rel. Law, § 6, as amd. by Laws of 1915, chap. 266, and Laws of 1922, chap. 279.)
The question here involved is whether the divorce obtained by the defendant's first husband, by publication in Ohio, without personal service upon her and without her personal appearance, should be given full faith and credit in this State. If the divorce of defendant and Niberg is not recognized in this State, then the defendant had a husband living at the time of her marriage to plaintiff, and that marriage is void.
The exact question here involved, apparently, has not yet reached our highest court, and, therefore, its determination by that court cannot even be forecast.
"We do not need to inquire what our conclusion would be if the issue of abandonment had been resolved in favor of the husband. * * * We do not even have to forecast the decision that would be made if they had been living separate by consent." ( Dean v. Dean, 241 N.Y. 240, 243, 244; Winston v. Winston, 165 id. 553, 555.)
The courts of this State "are the final judges of the occasions on which the exercise of comity will or will not make for justice or morality." ( Hubbard v. Hubbard, 228 N.Y. 81; Gould v. Gould, 235 id. 14, 25.)
If the State of Ohio was the matrimonial domicile of the defendant and Niberg at the time of the commencement of the divorce proceedings in that State, full faith and credit must be given to the judgment of the Ohio court, even without personal appearance by defendant or personal service upon her within that State. ( Atherton v. Atherton, 181 U.S. 155; Haddock v. Haddock, 201 id. 562, 570; Hubbard v. Hubbard, 228 N.Y. 81, 84.)
If the matrimonial domicile of the defendant and Niberg was the State of New York during the pendency of the Ohio action, then without personal service upon defendant in the foreign State or her personal appearance in the action, the divorce would not be recognized by the courts of this State. ( Ball v. Cross, 231 N.Y. 329, 331; Haddock v. Haddock, 201 U.S. 562; People v. Baker, 76 N.Y. 78.)
The domicile of the husband remains the domicile of the wife except she acquire a separate domicile by such conduct on his part as justifies her in abandoning him. When the wife abandons her husband without cause, he may obtain a divorce in the State of his domicile under the laws of that State, which will be effective in every State. ( Atherton v. Atherton, 181 U.S. 155, 164; Hunt v. Hunt, 72 N.Y. 217, 242; Post v. Post, 149 A.D. 452, 456; affd., 210 N.Y. 607.)
The decisions of this State lead this court to the conclusion that full faith and credit must be given to the decree of the Ohio court divorcing the defendant from her first husband, Niberg. Here the defendant left her husband, Niberg, without cause, both for a time remaining in this, the State of their matrimonial domicile. Her husband, Niberg, later established a bona fide domicile in Ohio. "In that event [where the issue of abandonment was resolved in favor of the husband] the wife, * * * would have been under a duty to live with her husband wherever he offered her a home." ( Dean v. Dean, 241 N.Y. 240, 244.)
The State of Ohio was, at the time of the commencement of the action in that State, the actual, legal, bona fide domicile of the defendant's husband, Niberg. The defendant having abandoned him without cause, he was not required to seek her out and invite her to his new home, in order to acquire a new domicile. 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. The subsequent marriage of plaintiff to defendant was, therefore, valid.
Judgment may be entered dismissing plaintiff's complaint, with costs, and for judgment in favor of defendant against the plaintiff for separation, with an allowance of ten dollars per week alimony.