#### Grace G. Harry, Plaintiff, *v.*George W. Dodge, Defendant.

(Supreme Court, Onondaga Special Term,

February, 1910.)

Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Want of personal service of notice or appearance. Domicile — Wife’s domicile as determined by- that of husband.

Where a husband in a foreign State obtains a decree of divorce in accordance with the laws of that State, even if the wife be in this State and does not appear in the action and is only served by publication, the decree, in the absence of evidence showing that she had acquired a domicile other than that of her husband, is valid, as, in the absence of such evidence, her domicile will be presumed to have been his.

But, where it appears that the parties while living in this State separated and the husband thereafter. went to the foreign State, where he procured a divorce, the wife’s domicile is not presumed to have followed that of the husband to the foreign State but to have remained in this State, where she continued to reside, and. the subsequent marriage of the husband during her lifetime will be presumed to be invalid.

Action to recover an interest in funds in the hands of a testamentary trustee.

*303Lindsay & Mackie, for plaintiff.

Warnick J. Hernán, for defendant.

Andrews, J.

One George W. Dodge died in the town of Augusta, Oneida county, on March 9,- 1881. His will, which was thereafter duly admitted to probate, devised and bequeathed the use, profit • and income of a portion of his property to his son, Hathaniel Dodge, during the latter’s life, and after his death the principal to his children.

Hathaniel Dodge, sometimes called “ Judge Douglas Dodge,” was married to Frances A. Htter of Whitesboro, H. Y., on February 16, 1881. The plaintiff, the only child of this marriage, was bom on June 12, 1883. In Hovember, 1883, Hathaniel Dodge and his wife “separated” or “ parted.” Thereafter he went to the territory of Dakota; and, on the 7th day of May, 1884, began, in that territory, an action for divorce against his wife, under the name of Judge D. Dodge, charging adultery, desertion and other offenses. Mrs. Dodge, after the separation, spent a few days in Hew York city and then came to Utica where she resided until August, 1884; she then lived in Bridgewater, Oneida county, for twelve years, and since that time in Ilion, Herkimer county. She never went to the territory of Dakota and had no knowledge of the divorce proceedings until some years after the decree was granted.

The summons in the divorce action was put in the hands of the sheriff of Spink county, Dakota, for service; and his return showed that the defendant was not a resident of the territory. Mr. Dodge himself, in an affidavit under date of May 9, 1884, stated that he was a resident of the territory but that the defendant was not, residing in the State of Hew York. Thereupon, on May 28, 1884, the court made an order for the service of the summons by publication upon the defendant, and that the same be mailed to her at Hew York city, “ her last known place of residence; ” and reciting that it appears that she is not a resident of the territory of Dakota, and is a resident of the city of Hew York.

*304Upon this service, and without personal appearance by the defendant, a decree of absolute divorce was granted, against her and in favor of the plaintiff, on September 30, 1884.

On May 1, 1889, Nathaniel Dodge and one Agnes Oleary were married at the city of Syracuse, N. Y., and, in May, 1890, the defendant, the child of Agnes Oleary and Nathaniel Dodge, was born. He is the only child of such alleged marriage.

Nathaniel Dodge died in the city of Oneida on November 10, 1907.

Since the death of Nathaniel Dodge, the trustee of the estate of George W. Dodge has received $129.73 which, under the will, belongs to the children of Nathaniel. The whole of this sum is claimed by the plaintiff. One-half of it is claimed by the defendant. And it is to determine the rights of the respective parties thereto that this action is brought.

The language used in the will of George W. Dodge obviously means that the remainder, after the death of their father, is to go to the legitimate children of Nathaniel. Therefore, if the defendant is such legitimate child, he is entitled to a half of the $129.73 claimed by him. Otherwise the whole sum belongs to the plaintiff. Whether the defendant is legitimate or not depends upon the validity of the Dakota decree of divorce obtained by his father against Frances Utter Dodge.

In Callahan v. Callahan, 65 Misc. Rep. 172, I have discussed the rule with regard to foreign divorces now in force in this State, in view of the decisions in Atherton v. Atherton, 181 U. S. 155, and Haddock v. Haddock, 201 id. 562. I have there held that the rule formerly prevailing in New York is unaltered by these decisions, except in one respect — that, where the foreign State in which the decree had been obtained was the matrimonial domicile of the parties, then, even if the defendant is a resident of this State and had only been served by publication, the decree must be held valid here.

The result is that, in determining the validity of a foreign decree of divorce obtained without personal service or appear*305anee against a defendant residing here, three elements are to be considered:

1. The domicile of the plaintiff,

2. The domicile of the defendant, and

3. The matrimonial domicile.

If the plaintiff only is domiciled in the State where the decree is granted, then it will not be recognized here.

If the plaintiff and the defendant are both domiciled there, the decree is valid even if the defendant may be actually present here.

If the plaintiff is domiciled there and the matrimonial domicile is there also, the decree is valid even though the defendant resides here.

In the case at bar it is not disputed but that ¡Nathaniel Dodge was domiciled in Dakota. It is equally undisputed that there was no matrimonial domicile in that territory, and that his wife was actually present in this State at the time the decree was granted.

The only theory, therefore, on which the decree can be sustained is that Frances Utter Dodge, while in fact present here, was domiciled in Dakota. She was domiciled there if, as a matter of law, her domicile follows that of the husband.

It has been said by a distinguished judge in this State that the old rule in reference to a married woman’s domicile following that' of the husband no longer prevails, in view of the rights which are recognized to be hers by statute; that the property relations between husband and wife have been entirely changed since the rule in question has obtained, and the reasons for the rule no longer exist. Hatter of Florance, 54 Hun, 328. It is true that this statement was made in a case where it appeared that the husband and the wife had agreed to live separate, and where the wife, by the husband’s consent, had acquired a domicile apart from his own. Yet the language used seems to be supported in its broadest sense by at least one opinion in the Court of Appeals. In O’Dea v. O’Dea, 101 N. Y. 23,’ the plaintiff and the defendant were married in Lewiston' in this State. She later left him and went to Toronto, and he removed to and became a resident of the State of Ohio. > *306He there, in accordance with the laws of that State, obtained a decree of absolute divorce. Although, as is pointed out in the dissenting opinion, there is nothing to show the circumstances under which the separation occurred and, therefore, under the old rule her domicile followed that of her husband, yet it was held that the Ohio decree was void. A similar result, under similar circumstances, was reached in McGiffert v. McGiffert, 31 Barb. 69.

In view, however, of other decisions in this State and in the Hnited States Supreme Court, I think that the old rule must still "be held to prevail, modified, however, by certain exceptions.

The domicile of the husband is still the domicile of the wife, except in cases where she is living apart from him under a decree of separation, or where ‘his conduct is such as to entitle her to a limited or absolute divorce, or where an agreement exists between them permitting her to live apart from him and to select her own domicile, or except in a very limited class of instances where his conduct is unreasonable. Hunt v. Hunt, 72 N. Y. 217; Gray v. Gray, 143 id. 354; Atherton v. Atherton, 155 id. 129; Haddock v. Haddock, 201 U. S. 562.

Therefore, where a husband, in a foreign State, obtains a decree of divorce in accordance with the laws of that State, even if the wife be present here, does not appear in the action and is only served by publication, that decree is valid here in the absence of evidence showing that she has -acquired a domicile other, than that of her husband. In the absence of such evidence, her domicile will be presumed to be his; and, if so, the court granting the decree obtained jurisdiction over her. •

Such is said to be the situation in the case at bar. But I think such claim is a mistaken one. Mrs. Dodge testifies that she and her husband Hathaniel lived in the town of Augusta until ¡November, 1883, and that then they “ separated— parted.” Later she testified that she went to ¡New York, city *“*after the separation from Mr. Dodge.”

The use of the word separate ” fairly implies an agreement between the parties; not an abandonment by the one *307of the other. It implies a consent on the husband’s part that the wife shall acquire a separate domicile. This view is strengthened by the affidavit of Mr. Dodge contained in the judgment-roll upon which the order of publication was obtained, that his wife is not a resident of Dakota but resides in the city of New York; and by the order itself to the same effect.

Domicile and residence are not convertible terms. The former has the more extensive meaning and includes, beyond mere physical presence at the particular locality, positive or presumptive proof of an intention to constitute it a permanent abiding place. Therefore, the statement that at the time the affidavit was verified Mrs. Dodge resided in New York is not entirely inconsistent with the claim that her domicile was in Dakota. Yet the place of residence is *prima facie*that of domicile. Ryall v. Kennedy, 67 N. Y. 379.

I am, therefore, of the opinion that the evidence, -though slight, requires the holding that, at the time Nathaniel Dodge began his action and obtained his decree of divorce in Dakota, his wife was domiciled in this State. That being so, the decree was void and the marriage to Agnes Oleary was without validity.

The necessary consequence is that the plaintiff is entitled to judgment for the relief demanded in the complaint.

Judgment for plaintiff.