New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1904-01-14
DAKOTA DIVORCE TOID.
Court Holds That Mrs. Elders Has
No Effect in This State.
CUSTODY OF BOY TO BE DECIDED

A decision handed down yesterday by Justice
Dlckey, of the Supreme Court BROOKLYN hold.
that IL divorce is obtained in South Dakota
IN which 1t is shown there is collision between
the husband and wife, such a decree Is Of no
force in this State. and that the parties are
still husband and wife. The decision was made
on the proceedings brought by Mrs Ellen
1hefesa Elder for the custody of her eleven
year-olc son. George w. Elder, IT., who has
been recently with his father at Bay Shore.
Long Island. Mr.. Elder is related to the Have
meyers, and is interested in the Havemeyer
Sugar Refining Company.
Justice Dickey in his decision says:
Finding. ! am forced to do by the evidence
mat Mrs. Elder went TO the State OF South
OaKota Tor the sole purpose of procuring
absolute divorce from her husband upon groI.-is
not authorized by the laws of this state; Illat
she was not a bona ide resident of South Da-
kola, nor domiciled therein and that her hus-
band was never a resident OF that State, and
tnat there never was any matrimonial domicile
or the parties in that State, and that the courts
OF south Dakota had no jurisdiction Of the SUBJ
)ect matter OF the action; that the whole pro-
ceedlng looking to the obtaining of the divorce
was by arrangement between the parties and
a collusive one; that she had no occupation
there. and returned in three days after begin
ming here suit, with her divorce, this State.
and has since resided in this State, her hus-
band remaining here during the whole time OF
her absence l must refuse here to give any
force effect TO the decree of divorce, or that
part or II which assumes to give control over
the minor child of the parties.
The principle dominating the subject is that
the marriage relation is so interviewer with the
fabric OF society and public policy that the
consent OF the parties is impotent to dissolve it
contrary to the law of the real domicile. Par
ties by appearing in a court foreign to their
domcile, and wholly wanting in the jurisdiction
OF the subject matter cannot have their mar.
riage dissolved a. to compel the courts or
this domicile to give effect to such 3Gdg fens
against this State. and its judgments, ana any
adoption % the acts Of the foreign court, useu
by the parties. would be an encouragement 10
wrongdoing. The due faith and credit clause or
the Constitution of the United states mas no
application where the facts they are In
this casa. This clearly and distinctly held
in the we'll reasoned case OF Andrews VS.. An
drews, 1S5 L. S. r.. a. and is controlling on me-
1t may seem harsh TO tbs wife that her nus
band is now heard Directing against what ne
was at the tina a willing consentfng party 10.
but ne is we'll within his legal II nor ms ioIe Ia
rights in asking that the law or TINS state DC
enforced in this State The question involved is
greater and more farreaching than concerns
the personal interests OF the parties 10 TINS Gull
When have heard all the proof will de-
ternine how much force will be gwen 10 the
agreement signed by the parties as 10 the GUS
tody of the child. The failure OF the divorce
decree leaves her still his wife. separated from
him with his consent with all the rights oelohs-
ing TO that situation
The husband under the agreement of separa-
ton paid the wife So 900 year alimony and
So 800 for the Of the son. and he is now
attacking his wife's right to the care and GUS
tody Of the boy. on the ground that she is not
a fit person. --e alleged that he found it neceB-
sary for the boys health TO have slight opera
ton performed, but that Mrs. Elder refused to
allow the boy to be operated upon being
Christian Scientist. and did not call in medical
assistance when il was needed. Mrs. Elder de-
MED her husbands allegation. and said she had
called in three physicians. The custody Of the
boy will now come before Justice Dickey for
determination. and upon that question he win
take proof