Opinion
No. 45/237.
06-10-1921
TEHSMAN v. TEHSMAN.
G. Earl Brugler, of Hoboken, for complainant. J. Emil Walscheid, of Town 6f Union, for defendant.
Suit by Bertha Tehsman against Reinhold Tehsman for divorce. Decree advised for complainant.
G. Earl Brugler, of Hoboken, for complainant.
J. Emil Walscheid, of Town 6f Union, for defendant.
GRIFFIN, V. C. The above cause seems in every respect quite like the case of Freund v. Freund, 71 N. J. Eq. 524, 63 Atl. 756, affirmed 72 N. J. Eq. 943, 73 Atl. 1117. The parties were married in New York on February 17, 1914. The wife obtained a divorcefrom bed and board in the Supreme Court of New York, in the county of Kings, on June 19, 1916, on the ground of extreme cruelty such as would justify a decree for constructive desertion, in New Jersey; and, consequently, if she left him under such circumstances the husband would be guilty of an abandonment, and if he failed to support her she would be entitled to separate maintenance under the twenty-sixth section of our act (2 Comp. St. 1910, p. 2038). This decree is offered in evidence, and is conclusive proof of the issues litigated, and which, if proven here, would justify a divorce for constructive desertion. Freund v. Freund, supra.
In the Freund Case the bill was filed to recover past-due alimony, as well as to have a sum allowed for maintenance under the twenty-sixth section. Vice Chancellor Emery, on the authority of Lynde v. Lynde, 181 IT. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810, held that the decree for alimony in New York was subject to modification and alteration, and was therefore not a final decree, to which full faith and credit should be given under the federal Constitution, but entertained the bill, under the twenty-sixth section of the Divorce Act, for future maintenance, and made the allowance accordingly.
In Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061, the whole matter was reviewed, and the law settled. The case dealt with an attempt to enforce a decree of the Supreme Court of New York for past-due alimony in the Supremo Court of Errors of Connecticut. The case did not deal with questions as to alimony not accrued. The Connecticut Court, (SO Conn. 1, 66 Atl. 772, 125 Am. St. Rep. 102) held, in effect, that the decree of the New York court was not final, and not entitled to full faith and credit under the federal Constitution. The pith of the decision of the Sistare Case, reversing the Connecticut court, is that, under the statutes of New York then existing, a decree of alimony was a final decree, and as each installment matured it automatically became a debt of record, to which full faith and credit should be given in a suit thereon in a sister state, because, as to such acccrued installments, there was no power in the courts of New York to annul, alter, or modify. See, also, Bolton v. Bolton, 86 N. J. Law, 69, 89 Atl. 1014; Id., 86 N. J. Law, 622, 92 Atl. 389, Ann. Cas. 1916E, 938.
But it appears by the laws of New York that as to installments not yet accrued there is this power to annul, alter, or modify, and therefore, before it becomes due, it is not a final decree; thus the Freund Case stands as the law as to future maintenance. The evidence is quite clear that that decree of the court of New York establishes all the facts which, if presented to the court here, would result in holding the defendant guilty of constructive desertion; and he is therefore guilty of abandonment under the twenty-sixth section. It is also clear that he has contributed nothing to her support, and therefore, the abandonment and the failure to support concurring, the complainant is entitled to a decree, and I will so advise.