Dean v. Dean

Clark, J.:

This action is for an absolute divorce on statutory grounds. The evidence shows that the parties were married in Kitchener, Ontario, Canada, in November, 1912, and that they lived there as husband and wife until February, 1919, when defendant abandoned plaintiff and went to live with his parents in Buffalo. His claimed reason for going to Buffalo was that his wife’s mother, with whom the parties had resided since their marriage, had ill-treated him. This was denied. Defendant also claimed that he urged his wife to accompany him to Buffalo which she refused to do. This was also denied and plaintiff claimed that she urged her husband to provide a place for the family to reside in Canada elsewhere than at her mother’s home and this is disputed by the defendant.

Three children were born of the marriage. One has since died and the other two have always lived with their mother, this plaintiff, at Kitchener, Canada, until about March 1, 1924, when plaintiff also moved to Buffalo where she testified she desired and intended to reside.

In 1922 defendant established a residence in Pennsylvania for the evident purpose of bringing an action for divorce against this plaintiff, which he finally procured November 5, 1923, his wife being served with process by publication, but without the knowledge of it, for no papers were served on her, either personally or otherwise.

To obtain the order of publication and also on the trial of the action in the Pennsylvania court, defendant testified that the whereabouts of his wife were unknown to him. This was clearly false for plaintiff had resided continuously since their marriage in Kitchener, Ontario, and this fact must have been known to *362defendant, for plaintiff testified on this trial that after defendant had left her, she had frequent conversations with him over the telephone when he was in Buffalo and this was not denied by defendant. Plaintiff testified that when she came to Buffalo to reside about March 1, 1924, she learned for the first time that her husband had procured this Pennsylvania divorce and had remarried and was then living with his second wife in Buffalo.

Then this action for divorce was begun, defendant’s second wife being named as corespondent. Defendant appeared in the action and plead the Pennsylvania divorce as a defense. The trial judge in his opinion held that defendant had procured the Pennsylvania divorce through fraud and that it was not binding on this plaintiff and that she could maintain this action and awarded her a decree.

It is undisputed that when defendant obtained his divorce in Pennsylvania, plaintiff was a resident of, and had her domicile in, Canada, and that she was never served with process in the Pennsylvania action, either personally or by mail, and that she did not appear in any way in said action.

Under the circumstances I do not think the Pennsylvania divorce obtained by the defendant against plaintiff was binding on her or that the courts of this State are obliged to give it full faith and credit.

Divorces granted in a foreign State upon substituted service of the summons, where the defendant does not appear, are not recognized by the courts of Canada against a party having a domicile there. (The King v. Brinkley, 14 Ont. 434.)

Whether defendant’s Pennsylvania divorce was valid depended upon the status of the defendant in that case (plaintiff here) at the time it was obtained.

It is not disputed that at the time the Pennsylvania divorce was granted, plaintiff had her domicile in Canada where she had always resided and that she did not appear in the action and was never personally served with process and that the courts of Canada do not recognize such a decree as that obtained by defendant in Pennsylvania and do not give such a decree full force and effect.

That divorce was, therefore,’ wholly void as to this plaintiff and was ineffectual to affect her status as the wife of the defendant and she continued to be such until the decree in her favor in this action was obtained.

It was for the State or country where she had her domicile when the decree was obtained to determine “ how far as to its own citizens the principles of comity shall be applied.” (Ball v. Cross, 231 N. Y. 329.)

*363Inasmuch as the Pennsylvania court did not acquire jurisdiction of the defendant in that action (plaintiff here) by personal service and the State of Pennsylvania was never her matrimonial domicile, the courts of this State are not required under article 4, section 1, of the Federal Constitution, to give full faith and credit to the Pennsylvania decree obtained by defendant. (Haddock v. Haddock, 201 U. S. 562; Bell v. Little, 204 App. Div. 235, 236; Hubbard v. Hubbard, 228 N. Y. 81; Matter of Caltabellotta, 183 App. Div. 753.)

When defendant obtained an order in the Pennsylvania courts to publish the summons upon a false affidavit to the effect that he did not know the whereabouts of his wife, it was with the evident purpose of preventing her (plaintiff here) from knowing anything about the proceeding and it was, therefore, a fraud on the Pennsylvania court and also on this plaintiff, as the trial judge stated in his opinion and the courts of this State can inquire into the proceedings, and, if it appears that the foreign divorce was obtained by fraud, it can be attacked in the courts of this State. (Hunt v. Hunt, 72 N. Y. 217.)

We are cited to a number of cases, including Powell v. Powell (211 App. Div. 750) and Kaufman v. Kaufman (177 id. 162), holding, in substance, that the courts of this State will not refuse to recognize foreign divorces granted on substituted service of process except for the protection of its own citizens domiciled here, and that this plaintiff, when she attacks the foreign divorce granted to defendant in Pennsylvania without personal service on the ground that the Pennsylvania court was without jurisdiction, must show that she was a resident of the State of New York at the time the foreign divorce was obtained.

I dó not think we are bound to follow those decisions in view of the facts established in this case and in view of the holding of the Court of Appeals in Ball v. Cross (supra), where it was stated in substance that it is for the State where the party (plaintiff here) had her domicile when the decree was obtained to determine how far as to its own citizens the principles of comity shall be applied,” and in view of the further undisputed fact that when the Pennsylvania decree was obtained by defendant, plaintiff had her domicile in Canada, was not personally served with process, and was in total ignorance of the proceeding, and did not appear in the action, and that .a decree thus obtained is in no way recognized by the courts of the State in which she was domiciled at the time it was obtained. (The King v. Brinkley, supra. See, also, O’Dea v. O’Dea, 101 N. Y. 23.)

Under the facts established in this case, we are not bound to *364recognize the Pennsylvania decree obtained by defendant under the principles of comity.

The fact that after that decree was obtained defendant remarried and lived and cohabited with his second wife in this State is not disputed. Plaintiff subsequently became a resident of this State and was such when she began this action, as found by the trial court, and she can maintain the action under subdivision 4 of section 1147 of the Civil Practice Act.

The judgment should be affirmed, with costs.

Httbbs, P. J., and Davis, J., concur; Crouch and Taylor, JJ., dissent in an opinion by Crouch, J.