#### The People ex rel. Marion B. Catlin, Relator, *v.*George L. Catlin, Respondent.

(Supreme Court, New York Special Term,

October, 1910.)

Divorce — Foreign divorces and allowances — Jurisdiction of foreign court —Want of personal service or notice or appearance.

Parent and child — Custody and control of child — Rights as between parents.

A divorce in a foreign State, recovered without personal service of process on the defendant or his personal appearance, is only recognized as valid in the courts of this State when recovered in tlie State of the defendant’s domicile or the matrimonial domicile of the parties.

This rule is the same whether the matrimonial domicile was, at the time of the divorce, in this State or in some other State in which its validity might be recognized.

Where a mother seeks to obtain the custody from the father of her infant children and it appears that, after contention as to their *192custody, a stipulation was made that the mother should have the custody of the children, the father always to have access to them,- and that they should not be taken out of the State; and where the mother, after making such stipulation, left the children here and went to Nevada to get a divorce and the father thereupon took them into his custody; and where the mother obtained a divorce which is not valid in this State and since returning from Nevada her husband has asked her to return to him and offered her a home, and she has no legal ground for separation from him, she will not be awarded the custody of the children upon a writ of habeas corpus, sued out by her against her husband, but the writ will he dismissed.

Wbit of babeas corpus.

Wilson Randolph Yard, for relator.

George William Hart, for respondent.

Whitney, J.

This is a writ of’habeas corpus to -obtain (the custody of tw-o children, a girl of nine .and a -boy of four. The relator is their mother. The children had always, until 1909, lived with her as part of a family of which her father trll his death and then her mother wias the head. The family lived in New Jersey until 1906, when it removed to Brooklyn. The husband, this respondent, never lived with the family -except for a period of less than a year in 1905 — 6, after the death of hi-s father-in-law. He left in August of that year.' Whether it was a case of willful and unjustifiable desertion on bis part is in dispute. In 190-9 tbe Brooklyn family consisted of relator, her children, her younger sister, two aunts and her mother. Th-e last named died in December of that year. After an unsuccessful attempt to persuade relator to live with him, au .attempt whose good faith is in dispute, respondent seized the children. This led to litigation, which was settled by stipulation in October, 1909. By tbe stipulation relator was to have the custody of the children, their father always to have access to t-h-em, and it was agreed that they should not be taken out of the State. Three weeks .after the agreement relator left them and went to Reno, in the State of Hevada, to get a divorce. They remained with the Brooklyn family until 1910, when re*193spondent seized them again, and they have since remained in his custody. By the stipulation she was to retain them for a year; but he was advised and contends that she broke the stipulation by abandoning their custody, and that he thus became the proper custodian. Her main contention is that by the decree of divorce which she obtained at Heno she is given the custody of the children, and that that decree, although not based upon personal service within the State of Wevada or upon appearance of this defendant, is one to which full faith and credit must be given. After a careful examination of the recent decisions of the Court of Appeals and United States Supreme Court concerning the' law of domicile as bearing upon the validity of divorces, granted without prior service of process within the jurisdiction of the court granting the divorce (Atherton v. Atherton, 155 N. Y. 129; 181 U. S. 155; Bell v. Bell, id. 175; Haddock v. Haddock, 201 id. 562), I agree with their interpretation by Mr. Justice Andrews in his able opinion in Callahan v. Callahan, 65 Misc. Rep. 172, and hold that they are recognizable under the law of this State only when granted in the State of the domicile of the defendant, or of the matrimonial domicile. Relator relies largely on North v. North, 47 Misc. Rep. 180; 111 App. Div. 921, which attributed the same power to the State of the domicile of the plaintiff if the parties had separated by the fault of the defendant; but this is admittedly opposed to O’Dea v. O’Dea, 101 N. Y. 23, a case which I do not find to have been overruled, and it seems to me to open a way to abuse. Between the Atherton and Haddock decisions I see no conflict. In the former the Supreme Court expressly stated that it did not pass upon the validity of a divorce in *“*a State in which only one of the parties ever had a domicile,” and sustained the jurisdiction of the Kentucky court on the sole ground that that State was the matrimonial domicile of the parties. The precise point decided was that the court in the State of matrimonial domicile has jurisdiction upon non-personal service of process to try the whole case, including the issues as to whether by the fault of the plaintiff the defendant had been given a right to acquire a separate domicile, and had done so. It *194seems to me that critics have been led into a misapprehension of the Atherton decision by assuming that the wife rightfully left her husband, because the New York court so found. It must be assumed, on the contrary, that she wrongfully left him, because the Kentucky court, with full jurisdiction of the parties, had previously so adjudicated. It is a mistake to suppose that when a husband and wife separate it is always ascertainable as matter of absolute fact whose fault it is. Often, if not generally, that is not ascertainable as matter of absolute fact. They dispute about it, and different judges conflict in their • decisions about it. Domicile for .practical purposes is not known as a fact, but fixed by some court as its inference from some testimony before it. It is, therefore, very important that as far as possible an adjudication should be had in a jurisdiction not selected by either party alone. If personal service of process within the jurisdiction of suit were required either party could select a residence which would compel the issues to be tried in a forum unfavorable to the oilier. If it were dispensed with to the extent contended either could go to a lax jurisdiction and summon the other by mail. Ho better rule could be found than that which the Supreme Court of the United States has 'adopted, namely, that the issues shall be triable without personal service within the State where the parties were last domiciled together as husband and wife. Hence, if the matrimonial domicile of these parties is the State of New York, I think that the Reno divorce is worthless, whether or not their separation was due to the fault of the defendant. But relator contends that New Jersey recognizes a Reno divorce based upon service of process without the jurisdiction; that the matrimonial domicile is in New Jersey, and that the laws of New Jersey should, therefore, govern the courts of New York in their treatment of these parties. Mr. Justice Andrews in the Callahan case defines matrimonial domicile as *“*the place whore they last lived together as husband and wife with the intent of making that place their fixed home.’? Literally construed, 'this definition would make New Jersey the matrimonial domicile; but I think that the peculiar circumstances of the present case *195show the matrimonial domicile to be in this State. It is indeed true that the parties last lived together in the State of New Jersey, but in 1906 they both removed to New York. Since then they have 'amicably discussed the subject of setting up housekeeping together. lie at one time took an apartment for the purpose in New York, and she went with him to see it. At about the same time she accompanied him to theatres and armories. They were each personally domiciled in New York State. They were here domiciled with intent to remain. They were here domiciled with intent to resume in full the relations of husband and wife. They were indeed residing in different counties, but the wife’s residence in Brooklyn was not with intent to remain there. In my opinion New Jersey ceased to be the matrimonial domicile when both parties moved to New York, or, at latest, when they .agreed to live in New York as man and wife; and did not again become the matrimonial domicile when the agreement failed, by whosesoever fault the failure occurred. It is not clear from the papers whether the matrimonial domicile was originally in New Jersey or New York; but this is' not important,'for the matrimonial domicile, like any other domicile, may change. Hence the Reno divorce, even if the relator obtained a domicile there, was void for want of jurisdiction; but I do not think that her residence amounted to a domicile. She testifies that in August, 1909, she was advised by her doctor to go West for her health to some higher climate; that he did not say Beno, but that she had made up her mind previously to go West and get a divorce, and told her husband so; that she arrived there Hovember 12, 1909, and went to a residence recommended by her attorney. The Hevada statute requires six months’ residence, and she commenced suit May 16, 1910, obtaining judgment by default July 25, 1910. She left Beno August 2, 1910, and has not returned. She left some wearing apparel at the hotel or boarding-house where .she was then sojourning, but reserved no room there. She has now no intent to return. She is residing with her sister and aunts in Brooklyn, and will stay there if her health permits. If not, she will go somewhere else, perhaps West. She has no *196definite plans. Upon this state of facts I find that she is still the wife of the respondent. Her husband asks her to return, and offers her a home. She shows no legal grounds for asking a separation, however justifiable her desire for it may be. It is not a legal ground for separation that she despises her'husband, or does not believe that he would be true to her or support ber. She, therefore, has uo right to ask for the custody of the children while living apart from him. The little girl wishes to go back to Brooklyn to live, but both children seem to be well cared for and to be friendly with both parents and with all their relatives on both sides. It is quite possible that the little girl would he better off if given again into the custody of her maternal grandaunts, hut this could not properly be forced by the court. Hence the writ must be dismissed.

Writ dismissed.