On appeal from the former Court of Chancery.
For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For reversal: None. The opinion of the court was delivered by Wachenfeld, J.
Appellant Harry Morrissey and respondent Janice were married and a child was born. Morrissey went to war; Janice went to Reno and secured a divorce. She immediately married Steiker and had a child by him. A change of mind brought about a reconciliation with Morrissey and she is now back living with him. The marital status became entangled and embarrassing and in an attempt to adjudicate and maneuver it within legal confines this suit was started, in effect to annul the Steiker marriage by vitiating the Nevada decree. Janice by counterclaim sought the same relief, leaving Steiker as the only defendant.
The first difficulty encountered is one of domicile, upon which the opinion below was bottomed.
Appellant and Janice lived in New Jersey and were married here on November 5, 1939. On the day after the marriage they went to Boston, Massachusetts, where he was then working as a musician. They lived first in an apartment on Beacon Street and then occupied an apartment in Brookline, Massachusetts. He played in an orchestra known as a "drifting band" and in that capacity toured Virginia. He then gave up the connection with the orchestra, returned to Massachusetts with his wife, where he matriculated at Harvard University, and took another apartment in Brookline. Thereafter he left school and entered the business of booking orchestras and also playing in them. This venture being unsuccessful, he took a position in Lynn, Massachusetts, in January 1943 which he retained until shortly before he was drafted into the armed forces on March 8, 1944.
The apartment in Brookline was not dismantled upon his entering the service but kept intact and subleased to a tenant
who paid $25 a month to Janice for the rental of the furniture which belonged to Morrissey, and $45 directly to the landlord. Morrissey was allowed to keep certain personal belongings in the apartment, such as "photograph albums," "some odds and ends" and "little things," which were still there at the time of final hearing. In October 1944 he received a soldier's ballot from the State of Massachusetts and voted it.
Upon Morrissey's entry into the army Janice spent a good deal of her time in New Jersey but did not establish a home here. She stopped in Bayonne with her mother; she also went to Belmar, Linden and then to Deal, whence she left to go to Nevada in November 1945.
On January 4, 1946 she filed a suit for divorce against Morrissey in Nevada, he being served overseas with process. The Nevada court appointed counsel to represent Morrissey's interest under the Soldiers' and Sailors' Relief Act, but upon his return in February 1946 Morrissey consulted his own counsel in New Jersey and retained a different Reno attorney to represent his interests. Upon the advice of the Reno attorney Morrissey executed a separation agreement to be approved by the Nevada court allowing visitation to the child and relieving Morrissey of the obligation of supporting Janice. Morrissey would have preferred a reconciliation with his wife but she, however, was unwilling. His counsel thereupon filed an answer and admitted Janice's domicile in Nevada. A hearing was held in which he cross-examined Janice concerning her Nevada residence and a final divorce decree was entered on March 21, 1946. Janice the same day flew East and married Sidney G. Steiker and lived with him until August 1946. She subsequently bore his child, custody of whom was given to Steiker, and is now living with Morrissey.
The infant, Jeffrey T. Morrissey, was made a party complainant on the theory that he had a property right and interest in the marriage status of his parents and that the fraudulent dissolution thereof was a violation of his rights. The court below held there was no authority for this procedure and upon motion dismissed the bill as to the child, from which no appeal is taken.
From these facts the court below concluded Morrissey and Janice at the time the Nevada divorce was obtained were domiciled in the State of Massachusetts and therefore had no standing to challenge the validity of the ...