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Gardner v. Gardner

Decided: February 3, 1950.

BARNET GARDNER, PLAINTIFF-APPELLANT,
v.
YETTA GARDNER, DEFENDANT-RESPONDENT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

The husband's complaint for divorce on the ground of desertion was dismissed in the Chancery Division because of lack of jurisdiction. The defendant filed no answer and the hearing was ex parte.

The learned Advisory Master found that the parties were married in New York City in 1919 and cohabited first in the State of New York and then in New Jersey; they resided in Jersey City, New Jersey, for several years before the wife deserted her husband in February, 1931; thereafter, although living apart, both continued to reside in New Jersey until 1935 when the husband moved to New York, where he has since resided; the wife, however, continued to reside in New Jersey, and resided here on December 7, 1948, when the husband instituted this suit for divorce. Further, he found that "between the period of 1931 and 1935, plaintiff sought a resumption of the marriage, but was met with a refusal by the defendant to reconcile" and that the husband's cause of action accrued and became vested in February, 1933, "after which the plaintiff has a legal right to refuse to resume the marriage." Relying on Heimler v. Heimler , 129 N.J. Eq. 497 (E. & A. 1941), and Webb v. Webb , 13 N.J. Misc. 439 (Ch. 1934), he dismissed the complaint on the ground that the Court lacked jurisdiction because the requirements of R.S. 2:50-10 were not met.

The husband argues that the Court had jurisdiction under R.S. 2:50-10(a), which provides that jurisdiction may be acquired "a. When, at the time the cause of action arose, either party was a bona fide resident of this state, and has continued so to be down to the time of the commencement of the suit, except that no suit for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the two years next preceding the commencement of the suit a bona fide resident of this state." To meet the test of " bona fide resident" under this statute, domicile must be proven. Heimler v. Heimler , above.

The husband concedes that under the Heimler and Webb cases his wife, under the circumstances of this case, could not

acquire a separate domicile here, during the two-year period before the cause of action vested, sufficient to meet the requirements of R.S. 2:50-10(a). He argues, however, that when the cause of action vested, his wife was forced to acquire a separate domicile, either by operation of law or by an implied consent or acquiescence on his part, and that she did acquire that separate domicile here.

The question for decision is whether, under the standard of domicile set up by this state in R.S. 2:50-10(a), this wife acquired a domicile here at the time the cause of action arose. We are not dealing with the question of whether New Jersey has power to set up a standard of domicile sufficient to give our Courts jurisdiction, under which standard a deserting wife may acquire a domicile without the consent or acquiescence of her husband. Williams v. North Carolina , 317 U.S. 287, 87 L. Ed. 279 (1942), settled the question that a state has the power. Cf. Shepard v. Ward , 6 N.J. Super. 130 (App. Div. 1950); Boardman v. Boardman , 135 Conn. 124, 62 A.2d 521 (Sup. Ct. of Errors 1948); Restatement, Conflict of Laws , ยง 28, as changed by 1948 Supplement.

The standard of domicile set up by this State under R.S. 2:50-10(a), which must be met to give jurisdiction to our courts, was considered in the Heimler and Webb cases.

In the Heimler case the parties were married in New York City on February 10, 1934; they remained there for about three months, then took a trip to Europe, returning to New York on September 15, 1934. There had apparently been an unhappy sojourn abroad and disagreement about cohabitation. On arrival back in New York the wife abruptly left her husband at the pier; subsequently appeared at his brother's home in New York the same night; stayed three days and then, having made known to her husband her dissatisfaction with the marriage, left him permanently and went to reside in New Jersey, where she continued to live to the time of the commencement of the divorce suit. He continued to reside in New York during the same period. The husband, in his petition for divorce on the ground of desertion, contended that his wife's continued residence in New Jersey, as above related,

satisfied the residence requirement of R.S. 2:50-10(a). The Court, in holding that the statutory requirement was not met, said that "the wife was the deserter. She could not by her wrongful act, desertion, and by the very process of its continuance, separating herself from her spouse, thereby release herself from the status the law imposes upon her with respect to her domicile being that of her husband."

In the Webb case the parties were married in this State in 1922; in 1926 the husband prepared a new home in the State of New York to be near his employment, but his wife refused to accompany him. In 1934 he sought a divorce in New Jersey based on her desertion, relying on her continued residence here to satisfy the requirements of section 6(a) of the 1907 ...


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