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Antonelli v. Antonelli

Decided: July 20, 1951.

DOMINICK ANTONELLI, PLAINTIFF,
v.
ANN ANTONELLI, DEFENDANT



Pindar, A.m.

Pindar

The gravamen of the complaint filed in this cause involves the right of a non-resident husband, as plaintiff, to a judgment for divorce here on the ground of adultery, whereupon he alleges a bona fide residence of the defendant wife in this State. The cause is statutory and brought under the provisions of R.S. 2:50-2 (a), and thus the desired relief must rest upon the jurisdictional requisite of our Divorce Act. Failure to show such authority in the court is fatal and will necessitate the entry of a judgment of dismissal. Defendant was served personally in this State, but filed no answer or appearance, and upon due assignment the cause was heard ex parte.

At the opening of the trial the court on its own motion raised and reserved the question of jurisdiction, but permitted plaintiff to offer his proofs, so that in the event the cause was sustainable, to have the advantage of the judgment sought if a determination herein, adverse to him on the jurisdictional question, should be reversed on appeal.

The parties were married December 11, 1943, and cohabited together at 65 Park Avenue in the City of Hoboken, New Jersey, until 1944 when defendant left the home. Plaintiff continued to live at the said residence until 1946 when with a child of the marriage he moved to Staten Island, New York, where he has since resided. The marriage was not resumed after 1946. Defendant has continued to reside in Hoboken. The adultery is charged with one Louis Segro during the periods of April and December, 1948; January and December, 1949, and January and September, 1950, at Hoboken, where he and defendant lived as man and wife. It is also charged that a child fathered by Segro was born to defendant. The named co-respondent, although given notice as required by

Rule 3:86, did not intervene, and when called as a witness for plaintiff, admitted his guilt. No denial was made by defendant. In addition the record contains plenary proof of the offense charged to warrant the entry of a judgment nisi , but I am constrained to deny the relief sought and to dismiss the complaint because of a lack of jurisdiction. In this respect it is significant to observe that plaintiff established his residence in New York State prior to the instances of adultery, and therefore plaintiff was not a bona fide resident of this State "at the time the cause of action arose" nor has he "continued so to be down to the time of the commencement of the suit." Such indubitable residentiary status of plaintiff will not bestow jurisdiction, and unless defendant's residence alone can be considered to be bona fide , neither party will have possessed a statutory residence at the time this suit was commenced.

As set forth in the pleading, plaintiff at the time of the commencement of the suit resided at 15 Delaware Avenue, Dongan Hills, Staten Island, New York. No incident of plaintiff's residence in New Jersey is pleaded as to either his animus manendi or animo revertendi , and neither is supported by the proofs. The only jurisdictional premise upon which this court is asked to adjudicate the cause sub judice is the alleged bona fide domicile of defendant, which is not sustainable in the record according to the standard fixed by the prevailing statute, R.S. 2:50-10 (a). That provision is as follows:

"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;" (underscoring mine).

The effect of a lack of jurisdiction has been long settled by a line of cases cited in the recent opinion of our Supreme Court in the case of Voss v. Voss , 5 N.J. 402 (1950). In that case the court at page 406 said:

"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)."

And at page 407, the court further said:

"A husband does not acquire any new rights because of the accrual of the cause of action in this State for the reason that a divorce is not punishment for a wrong done by one spouse to another but is the result of the determination of the state concerned, that is the state of domicile, that a longer continued marital relation between the parties would be contrary to the policy of the law. Divorce, in short, is not a punishment for an act; it is the reaction of the state to the effect of an act upon the marital relations. The state where that effect is felt, that is the state of ...


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