#### Susan Van Wyck Benham, Plaintiff, *v.*Wesley Hamilton Benham, Defendant.

(Supreme Court, Dutchess Special Term,

November, 1910.)

Divorce — Foreign divorces and allowances — Jurisdiction of foreign court — Constructive service against absent resident of a foreign State.

Whore, after a husband and wife have lived together for six years in Vermont, the wife abandons lier husband and comes into this State and the husband obtains a decree of absolute divorce in Vermont, upon service of process upon the wife in this State where she was temporarily sojourning, pursuant to an order of the Vermont court, such judgment is valid and binding upon - the parties and a bar to a subsequent action by the wife for an absolute divorce in this State after the husband has married again.

Demurrer to defendant’s answer.

Morsehauser & Hoysnadt, for plaintiff.

Lewis & Carroll, for defendant.

Tompkins, J.

This is a demurrer by the plaintiff to the defendant’s answer, upon the ground that it is insufficient in law upon the face thereof.

The admitted facts are that the plaintiff and defendant were married on the 2d day of September, 1896, at Pishkill in the State of Hew York, and that, in the month of September, 1898, the plaintiff and defendant, who were then living together, moved to St. Albans, Pranldin county, Vt., where the defendant became rector of S't. Luke’s Church. They lived together as husband and wife at St. Albans in the State of Vermont until the 15th day of June, 1904, a period of six years, when the plaintiff abandoned the defendant and left her home, and went to Pishkill in the State of Hew York, and never returned to the defendant or to their home in Vermont. On the 15th day of August, 1906, while the defendant was still residing at St. Albans in the State of Vermont, he instituted an action for a divorce *443against the plaintiff in the County Court of Franklin county in the State of Vermont. The summons and complaint in that action were served upon the defendant (the plaintiff in this action) personally, at Poughkeepsie, Dutchess county, FT. Y., on the 21st day of August, 1906, pursuant to an order duly made by a judge of the Supreme Court of the State of Vermont, under a statute of that .State which provides for such service upon the non-resident defendant. The complaint in that action alleged, as a ground for absolute divorce, intolerable severity, which, under the statute of Vermont, was a sufficient ground for an absolute divorce. The service of the summons and complaint in that Vermont action was duly and regularly made upon the plaintiff herein, who, however, did not appear or defend said action; and, in the month of September, 1906, after a hearing duly had in the said County Court in Franklin county, Vt., the defendant herein was granted an absolute divorce, and judgment therefor was duly made and entered in Franklin county aforesaid. Thereafter the 'defendant herein married another woman within the State of Few York and is now living with her at Buffalo in this State; and this action is brought by the former wife for an absolute divorce, alleging the defendant’s adultery with the woman with whom he is now living as his wife in the city of Buffalo. The answer sets up as a defence to the plaintiff’s cause of action the judgment granted in his favor against the plaintiff herein by the County Court of Franklin county in the-State of Vermont, and the question upon this demurrer is whether that judgment in the husband’s favor is good and effective in this State against the wife,—in other words, whether the judgment of the Vermont court is entitled to full faith and credit in this State, under section 1 of article 4 of the Federal Constitution.

The plaintiff’s counsel argue and insist that the Vermont court did not acquire jurisdiction of the person of the defendant because, at the time the action was commenced, she was not an .actual resident of that State, but was residing at Fishkill in the State of Few York, where the siTmmons was served upon her, and that such service did not confer juris*444diction upon the Vermont court, and cites the case of Haddock v. Haddock, 201 U. S. 562, in support of their contention. In that case it was held that the mere domicile within the State of one party to the marriage does not give the courts of that State jurisdiction to render a decree of divorce enforcible in all the other States, hy virtue of the full faith and credit clause of the Federal Constitution, against a non-resident who did not appear and was only constructively served with the notice of the pendency of the action; and that, “ where a personal judgment has been rendered in the courts of a state against a non-resident merely upon constructive service, and therefore, without acquiring jurisdiction over the-person of the defendant, such judgment may not be enforced in another.state; indeed, personal judgment so rendered is, by operation of the due process clause of the 14th Amendment, void as against the non-resident, even in the state where rendered, and therefore, such non-resident in virtue of rights granted by the Constitution of the United States, may successfully resist, even in the state where rendered, the enforcement of such a judgment.”

In that case, however, the. defendant was not and never had been a resident of the State of Connecticut, in which the action was brought and the judgment rendered; and the plaintiff apparently went into that State for the purpose of acquiring a residence to enable him to bring an action against his wife, who was a resident of the State of Hew York; and the court held that the wife, being domiciled in the State of Connecticut, was not bound by the judgment in •that State, which was based upon constructive service of the summons, only, and in which action she did not appear. That is the rule that has been laid down in other cases, and it is now well established that no valid decree of divorce can be made on constructive service by the courts of a State in which the defendant is not domiciled; but the case at bar is not such a case. Here the plaintiff and defendant moved to St. Albans, Vt., in September, 1898, and the case of Atherton v. Atherton, 181 U. S. 155, seems to be decisive of this demurrer.

In that case, the plaintiff, Mary Gr. Atherton, was mar*445ried, in 1888, to the defendant, in Clinton, K. Y. After the marriage of the parties they took up their residence in Louisville, Kentucky. In 1891 the plaintiff left her husband’s house permanently, taking their child with her. • But before departing fbr the State of Kew York, she entered into a certain agreement with the defendant, Peter Atherton, with reference to providing for her support, and thereafter departed from Kentucky and came to the State of Kew York, as the trial court found in that case, with the intention of changing her residence and domicile from Kentucky to Kew York.

In December, 1892, the defendant commenced an action against the plaintiff, Mary G. Atherton, in Kentucky, for an absolute divorce, alleging that she had abandoned him in October, 1891; and that such abandonment had' continued for a period of more than a year.

Under the statutes of Kentucky, that state of facts entitles the plaintiff to a decree dissolving the bonds of matrimony. The defendant was not served with process in Kentucky, nor did she appear in the action, and a judgment of divorce was obtained by the husband in Kentucky in 1893.

Subsequently the wife began the action in the State of Kew York for a limited divorce, upon the ground of cruel and inhuman treatment; and, in this action, the decree of the Kentucky courts granting the absolute divorce was pleaded in bar of the wife’s action. The principal question presented upon the appeal was whether the Kentucky decree was a bar to the action, Mary G. Atherton attacking the decree on the ground that it was entered by a court having no jurisdiction of her person, she being, at the time the Kentucky action was begun and the decree was entered therein^ a resident of the State of Kew York.

On the other hand, the defendant in that action, Peter Atherton, insisted that his wife was, at the time referred to, a resident of Kentucky and, consequently, bound by the decree.

Upon this issue the courts of the State of Kew York decided in favor of the wife. In the Oourt of Appeals opinion it was said: “ The learned counsel for the defendant from *446Kentucky argued with great earnestness and ability, that the matrimonial domicile of the wife is that of her husband, and consequently we are compelled by the Constitution of the United States to give full faith and credit to the decree in her husband’s favor. In view of the fact that we have a' finding fixing the wife’s domicile in this state, we are of the opinion that the Kentucky decree is void as to her, under the law as well settled in this jurisdiction.”

*“*It is undoubtedly true that the matrimonial domicile of the wife is that of her husband, but this general rule has its exceptions. In this case, we have the finding that the plaintiff was justified in leaving her husband, and that the sole reason for so doing was his cruel and inhuman treatment. * * * In the case at bar, we have the undoubted right of the plaintiff to change her domicile under this rule, followed by the finding that she did so change it to the State of -New York. It has been held in many cases that the jurisdiction of the court of another state, in which judgment has been rendered, is always open to inquiry by the courts of this state, and if that court ¡has exceeded its jurisdiction, or has not obtained jurisdiction of the parties, the proceedings are void. * * * We have carefully examined the evidence, and have reached the conclusion that the findings of the trial court as to ’the issues of domicile of the plaintiff and the cruel and inhuman treatment by defendant of his wife, are not without evidence to support them, and because of their affirmance by the General Term, they are binding upon this court.”

It therefore follows, upon the facts and the law, that the Kentucky judgment is not a bar to this action.

This ease went to the Supreme Court of the United States upon the question raised by the refusal of the courts of this State to accord full faith and credit to the Kentucky judgment and to which it was claimed to be entitled by the defendant, Peter Atherton. In that court the case was reversed, and the effect claimed for the Kentucky judgment sustained.

The court carefully examined a large number of cases as bearing upon this vexed question and points out that it is not *447a case where one of the parties leaves the State of the matrimonial domicile and obtains a residence in another State and then obtains a decree of divorce, in which case the question of the validity of the divorce is open to question because of the lack of the jurisdiction of the court over the defendant, owing to lack of personal service, and says: “ This case does not involve the validity of a divorce granted on constructive service, by the court of a state in which only one of the parties ever had a domicile, nor the question to what extent the good faith of the domicile may be afterwards inquired into. In this ease the divorce in Kentucky was by the court of the state which had always been the undoubted domicile of the husband, and which was the only matrimonial domicile of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky.

“ The husband always had his domicile in Kentucky, and the matrimonial domicile of the parties was in Kentucky. On December 28th, 1892, the husband filed his petition for divorce in a court of appropriate jurisdiction in Kentucky, alleging an abandonment of him by the wife in Kentucky, and the continuance of that abandonment for a year, which Was a cause of divorce by the laws of Kentucky. His petition truly stated upon oath, as required by the statutes of Kentucky, that the wife might 'be found at Olimton in the ■State of Hew York, and that at Clinton was the post office nearest the place where she might be found.

“As required by .the statutes of Kentucky, 'the clerk thereupon entered a warning order to the wife to appear in sixty days, and appointed an attorney at law to represent her.. The attorney on January 5th, 1893, wrote to the wife at Clinton, fully advising her of the object of the petition for divorce, and enclosing a copy thereof, in a letter addressed to her by mail at Clinton, and having printed on the envelope a direction to return to him, etc. * * * And on March 14th, 1893, the court after taking evidence, granted the husband an absolute decree of divorce for his wife’s abandonment of him.

*448“ The court of New York has indeed found that the wife was ‘ not personally served with process within the State of Kentucky, or at all.’ It may be doubted whether this negatives her having received, or had knowledge of, the letter sent to her by the attorney in Kentucky, January 5th, 1893, six days before she began her suit in New York. But assuming that it does, the question in this case in not whether she had actual notice of the proceedings for divorce, but whether such reasonable steps had been taken to give her notice, as to bind her by the decree in the state of the domicile.

“ The court in New York found that the wife left the husband and went to Clinton with the purpose and intention of not returning to the state of Kentucky, but of permanently residing in the state of New York; and that this purpose and intention were understood by the husband at the time, and were contemplated and evidenced by the agree-, ment executed by the parties in Kentucky, October 10th, 1891.

“We are of the opinion that the undisputed facts show that such efforts were required by the statutes of Kentucky, and were actually made, to give the wife actual notice of the suit, in Kentucky, as to malm the decree of the court there, granting a divorce upon the ground that she had abandoned her husband, as binding on her as if she had been served with notice in Kentucky, or had voluntarily appeared in the suit. Binding her to that full .extent, it established beyond contradiction, that she had abandoned her husband, and precludes her from asserting that she left him on account of his cruel treatment.

“To hold otherwise, would make it difficult, if not impossible, for the husband to obtain a divorce for the cause alleged, if it actually existed. The wife not being within the state of Kentucky, if constructive notice, with all the precautions prescribed by the statutes of that state, were insufficient to bind her by a decree dissolving the bond of matrimony, the husband could only get a divorce by suing in the state in which she was found, and by the very fact of his suing her there he would admit that she had acquired a separate domicile (which he denied) and would disprove *449his own ground of action that she had abandoned him in Kentucky.”

The rule laid down in the Atherton case, applied to the case at bar, makes the decree of divorce granted in the husband’s favor in the State of Vermont good and binding upon the wife, for the reason that the matrimonial domicile of both was at St. Albans, in the State of Vermont, at the time the husband commenced the action against her, and at the time of the service of the summons upon her at the place where she was temporarily sojourning in the State of New York. In other words, the legal domicile of the wife was in the State of Vermont at the time of the husband’s suit in that State, and at the time of the service of the summons, as well as at the time of the rendering of the judgment in the husband’s favor; and that fact conferred jurisdiction upon the Vermont court, even though the service of the summons took place upon the wife after she had departed from that State.

The fact that she left her home and her husband in the State of Vermont and went into the State of New York, no matter what her purpose was, did not change her matrimonial domicile. That continued to be at the place of the old home, where the husband was located in the State of Vermont, and where they together had resided for several years.

To this same effect was the decision o-f the United States Supreme Court in the case of Bell v. Bell, 181 U. S. 175, in which it appeared that the parties were married at Bloomington, Ill., and lived thereafter as husband and wife, at Rochester, N. Y., and afterwards at Buffalo, N. Y.

' In 1882, the plaintiff went to Bloomington to visit her mother; and, in her absence, the defendant packed up her wearing apparel and other property, in trunks, and stored them, preparatory to sending them to her at Bloomington. In September, 1882, the plaintiff, accompanied by her mother, returned to the defendant’s house -and stayed three or four days,- and then left for Bloomington; after which time the plaintiff and defendant did not live together, and the plaintiff always claimed her residence as being in Buffalo.

*450On Jánuary 8, 1895, the Court of Common Pleas, Jefferson county, Pennsylvania, granted to the husband, on his petition filed April 9, 1894, alleging that he had been for a year a citizen of the State and a resident of the county, a decree of divorce from the bond of matrimony for her desertion, which under the laws of Pennsylvania was a ground for dissolving the marriage. The subpoena in that action was not served personally upon the wife, but was served by publication, according to the laws of Pennsylvania; and she received- through the mail a copy of the subpoena, and of the notice of the examiner that he would attend to the duties of his appointment on December 14, 1894, at his office in Brook-ville, in Jefferson county, Pennsylvania. She did not appear, in person or by attorney, and judgment was rendered against her by default.

At the beginning of that action and the rendering of the decree, the wife was a resident of the State of Déw York; and the husband was not a *bona fide*resident of the State of Pennsylvania. The court said: *“*The question in this case is of the validity of the divorce obtained by the husband in Pennsylvania. Do valid divorce from the bond of matrimony can be decreed on constructive service by the courts of a State in which neither party is domiciled. And by the law of Pennsylvania every petitioner for a divorce must have had a *bona fide*residence within the State for one year next before the filing of the petition. The recital in the proceedings-in Pennsylvania of the facts necessary to show jurisdiction may be contradicted. ■ ,

“ The referee in this casé has not only found generally that at the time of those proceedings the wife was a resident of the State of Dew York, and the husband was not a *bona fide*resident of the State of Pennsylvania, but has also found that on January 31st, 1894, some ten weeks before he filed his petition in Pennsylvania, he described himself undér oath, etc., * * * as a resident of the State of Dew York. Upon this record therefore, the court in Pennsylvania had no'jurisdiction of the husband’s suit for divorce, because neither party had a domicile in Pennsylvania, and *451the decree of'divorce was entitled to no faith and credit in IsTew York or in any other state.” :

The effect of these latest decisions is that the power of a court to render a judgment of divorce or separation, bindr ing in other States, depends upon the domicile'of the parties ■to the action being legally within the State where the decree is rendered; in which case, the service by publication, or substituted service allowed by the laws of that State, is. sufficient to give jurisdiction over the other party to the action, and-that where the matrimonial domicile is 'established in such -State, notwithstanding the fact that one of the parties abandons the other and leaves such jurisdiction, the court still has power to bind that party by its decree in such manner that full faith and credit must be given to such judgment by the courts of other States. Where, however, one of the parties to the marriage leaves the matrimonial domicile and acquires a residence in some other State and there obtains a decree of divorce, it is not binding or effective outside of that State.

The answer in this case, which is demurred to, sets forth in substance that the matrimonial domicile of the plaintiff and defendant was in the State of Vermont and that they had resided there together in good faith, making that place their home for several years, and that then the plaintiff herein abandoned this defendant, whereupon the defendant brought his action in that State, which was the matrimonial domicile of both parties, and served the summons in accordance with the laws thereof, and that thereafter a judgment of absolute divorce in that action was duly rendered in favor of the defendant herein against his wife, the plaintiff herein.

That judgment, it seems to me, authorized the defendant herein to marry again, and is a complete bar to the present action. The plaintiff’s demurrer, therefore, to the defend" ant’s answer, is overruled with costs.

Demurrer overruled.