This is an action seeking to recover alleged arrears of alimony based on a judgment for divorce and alimony obtained in the Supreme Court of New York, and directly attacking the decree of divorce obtained by the defendant in the Ashley County Chancery Court of Arkansas.
The parties were married November 5, 1925, in the State of New York. After their marriage they lived together as husband and wife in New York State until about 1942. The defendant was in the federal service as a member of the border patrol of the United States Immigration and Naturalization Service. In 1942 he was transferred to Boston, Massachusetts, where he served until about the year 1944, when he was transferred to New Orleans, Louisiana. At these various stations he lived with his wife and the son born of the marriage. In 1948 he was transferred to Del
Rio, Texas. In March 1952 he was transferred to Philadelphia, Pennsylvania, and resides at Merchantville in this State.
During their life in New Orleans defendant became infatuated with another woman. Differences arose and plaintiff returned to New York. While living with plaintiff in New Orleans, defendant obtained a decree of divorce in the State of Arkansas (the incidents whereof appear hereafter) and subsequently married the woman with whom he now resides. A daughter was born of the marriage. Plaintiff in 1947 instituted a suit in the Supreme Court of New York for divorce and alimony, alleging adultery of the defendant, and judgment was entered in her favor. The decree provided: that the decree rendered by the Ashley County Chancery Court of the State of Arkansas is not entitled to recognition in the State of New York; that the plaintiff is entitled to a judgment against the defendant Robert M. Lea dissolving the marriage relation heretofore existing between the parties hereto, because of the adultery of the defendant; that plaintiff is entitled to the sole custody of the infant issue of the marriage of the parties hereto; that the plaintiff is entitled to receive from the defendant for her support and maintenance the sum of $5 per week and for the support and maintenance of the infant issue of the marriage of the parties the sum of $15 per week, commencing from the date of entry of the judgment.
Plaintiff by this action seeks to have full faith and credit to the judgment of the New York court and judgment for arrears of alimony.
Defendant challenges the validity of the New York judgment on the ground that it was entered without the court having jurisdiction over him, in that he was not personally served with process within the State of New York. He is within his rights. It is well established that in determining the credit to be given the judgments of a sister state the courts of this State will inquire into the jurisdictional facts. The meritorious question here is, was the service of the summons due process of law? The summons was served
personally on defendant in New Orleans, Louisiana, by a deputy sheriff of New Orleans. The procedure was in accord with the New York Civil Practice Act, sec. 235, which provides that where the complaint demands judgment annulling a marriage, or for divorce, or a separation, or a sum of money only, service of the summons may be made outside of the state on a defendant domiciled in New York if made by a New York resident or citizen or a sheriff or undersheriff or a deputy sheriff of the political subdivision in which service is made. Such service has been held to be due process of law.
"The authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. * * * One such incidence of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. See, Restatement, Conflict of Laws , §§ 47, 49; Dodd, Jurisdiction in Personal Actions , 23 Ill. L. Rev. 427. Here such a reasonable method was so provided and so employed." Milliken v. Meyer , 311 U.S. 457, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940).
This case appears on page 247 in the book by Chief Justice Vanderbilt, entitled Cases and Materials on Modern Procedure and Judicial Administration , with the following footnote:
"Rehearing denied 312 U.S. 712, 61 S. Ct. 548, 85 L. Ed. 1143 (1941). Cf. N.Y.C.P.A. sect. 235 (1950), extending in personam jurisdiction of New York courts to cases when personal service has been effected outside of the state on a resident defendant. ...