Felt v. Felt

The opinion of the court was delivered by

Gummere, J.

The appellant, by her bill in this case, seeks a decree of divorce from her husband for adultery and also for desertion. The respondent has pleaded, in bar of the relief sought, a decree of absolute divorce obtained by him against the appellant in a district court of the Territory of Utah. A full recital of the averments of the plea is not necessary. It is sufficient for present purposes to say that the truth of those averments is conceded by the appellant; that from them it appears that the court which rendered the decree pleaded had jurisdiction of the subject-matter of the suit and of the respondent here, who was the complainant therein, and who, at the time of the institution of the suit, was a bona fide' resident of the Territory of Utah • that the domicile of his wife was in this state and that she was neither served with process within the Territory of Utah nor did she personally submit herself to the jurisdiction of the court, but that jurisdiction was obtained by publication of the process and complaint, made in accordance with the statutes of Utah; that in addition, personal service thereof was made upon *608 her, at her residence in New Jersey, a sufficiently long time before the period within which to make answer had expired, to afford her an opportunity to defend the suit if she had desired to do so, and that the decree was granted upon two grounds, viz., cruelty and desertion.

What force and effect will be attributed to a decree of divorce rendered in a court of a sister state, where the jurisdiction of the court rests solely upon the domicile of the complainant, and where the defendant, being a non-resident, is brought into court by publication and the service of notice outside the- jurisdiction, is a question of first impression in this court. It will not be denied that the preservation of good morals and a proper regard for social relations make it desirable that such a decree should be considered valid not only in the state where it is pronounced but in every other jurisdiction, provided the grounds upon which it is based are recognized in such jurisdiction as justifying the decree. By it the matrimonial relation of the husband and wife is terminated in the state in which, it is rendered. Within the boundaries of that state a marriage afterward contracted by either of the parties with a third person is entirely valid. So, too, sexual relations between the former husband and wife within that jurisdiction subsequent to the entry of the decree are illicit unless sanctioned by a new marriage. But if the decree is without extra-territorial force the entire status of both parties is reversed as soon as they pass beyond the limits of that state. A subsequent marriage to a third person within, that state then becomes void and the relations of the parties to it become adulterous, while sexual relations between the parties to the decree, which are meretricious if indulged in within that state, become matrimonial again when indulged in without its borders. A condition of the law which makes the intercourse-of a man and woman either legitimate or adulterous as they happen to be within the limits of one state or another is not to be tolerated any further than is plainly required by public policy.

That the public policy of New Jersey does not require that recognition should be refused to a decree of divorce, rendered *609 by a court of a sister state, because the defendant had her domicile in another state and was not within the jurisdiction of that court, seems to me plain. State policy, when determined by the legislative, controls the judicial branch of the government; and the legislature of New Jersey, by vesting in our court of chancery sole jurisdiction over the subject of divorce, and then authorizing it to render decrees divorcing, a mnmlo, ‘resident complainants from non-resident defendants after obtaining jurisdiction over the latter by publication, and notice served out of the state upon, or mailed to the post-office address of, the latter, has, as it seems to me, declared what our policy in this regard shall be. That it was intended by the legislature that decrees of divorce so rendered should be valid in every jurisdiction, so far as it had the power to make them so, goes without saying; and it cannot be conceived that it was intended that we should refuse to accord to the decrees rendered in the courts of our sister states against non-resident defendants who have not submitted themselves to the jurisdiction of such courts, the efficacy we claim for our own when liable to the same objection.

As has been heretofore stated, the question before us has never been determined in this court. It, however, received consideration in Doughty v. Doughty, 1 Stew. Eq. 581, although the case was decided upon another ground. In that case, Chief-Justice Beasley, delivering the opinion of the court, says: “A judgment of divorce, resting even on such a contracted foundation as the domicile of one of the parties alone, bears with it, into other jurisdictions, a title to respect, and, in some cases, a claim to voluntary adoption. In such instances, I regard the question whether the judgment shall be extra-territorially enforced to be one resting entirely on the consideration that, in a -matter of unusual interest of this nature, an obligation rests upon every government to carry into effect as far as is reasonably practicable, and as may be consistent with its own policy, all foreign judgments. But an appeal of this kind to interstate comity should, I think, never prevail when the judgment sought to be accredited has been rendered in violation of that fundamental axiom of justice that the parties, before their rights are adjudged, *610 shall have an opportunity of being heard. A judgment of divorce proceeding from a jurisdiction founded on domicile would not contravene essential rules of natural justice if actual notice to appear had been served on the defendant residing abroad. It is true that a notice so served, on á litigant out of the jurisdiction in which a suit is pending, may add nothing to the judicial right to take cognizance over the cause, but, nevertheless, it may impart a quality to the resulting judgment that will serve as a credential to it in a foreign jurisdiction.”

There is much contrariety of opinion upon the question, in the courts of the various states, but the weight of authority seems to support the view expressed in Doughty v. Doughty, to this extent at least, that interstate comity requires that a decree of divorce pronounced by a court of the state in which the complainant is domiciled, and which has jurisdiction of the subject-matter of the suit, shall, in the absence of, fraud, be given full force and effect within the jurisdiction of a sister state, notwithstanding that the defendant does not reside within the jurisdiction of the court which pronounced the decree, and has not been served with process therein ; provided, that a substituted service has been made in accordance with the provisions of the statute of that state, and that actual notice of the pendency of the suit has been given to the defendant and. a reasonable opportunity afforded to put in a defence thereto ; and provided further, that the ground upon which the decree rests is one which the public policy of the state in which it is sought to be enforced recognizes as a sufficient cause for divorce.

That view commends itself to us, and we think that, subject to the limitations mentioned, the courts of New Jersey should, as a matter of interstate comity, recognize as valid a decree of divorce rendered by the court of a sister state against a resident of this state who has not been served with process.

In the case before us the court pronouncing the decree which has been pleaded in bar of the relief sought by the complainant was a court of the domicile of the present defendant. It had jurisdiction of the subject-matter of the suit. There was a substituted service of process upon the defendant therein (the *611 present complainant) by publication, in accordance with the provisions of the Utah statute. Actual notice of the pendency of the suit was given to her in time to have enabled her to make defence thereto if she had desired to do so. There is not even a suggestion that the decree is tainted by fraud, and one of the grounds upon which it rests — namely, desertion — is recognized by the laws of this state as justifying the dissolution of the marriage relation.

The decree appealed from should be affirmed.