On appeal from the Superior Court, Chancery Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
This is a matrimonial case in which plaintiff appeals from a dismissal of his complaint whereunder he sought a divorce from the defendant on the ground of desertion. Certification to the Superior Court, Chancery Division, was petitioned for and granted.
The defendant was served personally with process but she filed no answer or other response nor did she appear in the suit.
Plaintiff's proof showed that the parties were married January 26, 1914; that the defendant deserted the petitioner in April of 1927; and that both plaintiff and defendant were residents and domiciled in this State from the date of their marriage to March, 1948. At that time the plaintiff moved
to Hillburn, in the State of New York, the defendant remaining a resident of this State. It will thus be seen that a nonresident husband sought a divorce under our statute from a resident wife on the ground of her wilful, obstinate and continued desertion, basing his right therefor upon her domicile here to support jurisdiction.
We are in accord with the determination of the Advisory Master that the issue was not one within the jurisdiction of our courts.
This action was brought under R.S. 2:50-10, par. (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."
Both parties were domiciled in this State not only at the time of the wife's desertion in April, 1927, but until the husband moved to New York in March, 1948. They were both residents of New Jersey when the cause of action arose in 1929 and the first jurisdictional prerequisite was met. But the second prerequisite of continued bona fide residence in New Jersey preceding the commencement of the suit by one of the parties has not been established.
In every suit for divorce it becomes necessary to ascertain, in order for the court to acquire jurisdiction, the situs of the status or res. In the absence of a marital offense by the husband or unless the wife acquires a domicile elsewhere by his acquiescence or consent, or by such misconduct inimical to the union as justifies her in selecting another, the matrimonial domicile of the wife merges with that of the husband. Rinaldi v. Rinaldi, 94 N.J. Eq. 14 (Ch. 1922); Webb v. Webb, 13 N.J. Misc. 439 (Ch. 1934); Heimler v. Heimler, 129 N.J. Eq. 497 (E. & A. 1941); Shepherd v. Ward, 5 N.J. 92 (1950).
The words " bona fide resident" as used in the statute are synonymous with domicile and mean ...