Reuben K. Davis for petitioner.
Viron K. Jones for respondent.
"Although residence, as used in section 1147 of the Civil Practice Act, means domicile or permanent abode (
de Meli v. de Meli, 120 N.Y. 485, 491;
Clapp v. Clapp, 272 App. Div. 378), plaintiff may maintain this action". Presiding Justice NOLAN concurring, said, "In my opinion the record before the court establishes prima facie that at the time of the commencement of the action plaintiff was a resident of the State of New York (Civ. Prac. Act, §§ 1147, 1166)". Under the law of no State will a divorce decree issue, even though the court has competence, unless residence with the intent to permanently remain within the jurisdiction of the court is established. In the
de Meli case (
120 N.Y. 485, 491), the Court of Appeals through Mr. Justice BRADLEY said, "The defendant was not without his domicile, and unless another was acquired by him elsewhere, he retained his domicile of origin. And to effect a change of it the fact and intent must concur. * * * In legal phraseology residence is synonomous with inhabitancy or domicile. * * * and persons having that relation to this state are its citizens and residents, and for the purposes of the relief like that in view of this action, they are subject to the jurisdiction of its courts." Aside from the question of jurisdiction acquired by the Florida court on the basis of residence or domicile in that State by the plaintiff there is also the question of an appearance in said court by petitioner in the proceeding instituted there by the plaintiff to be determined. There is no doubt that she was apprised of the action commenced by her husband in the Florida court and so informed the court. But does her letter in evidence amount to an appearance by her? In
Weir v. Weir (131 Misc. 13, 15), a note reading as follows: "`1201 Oak St., Syracuse, N.Y., Apr. 2, 1925.
Martha —
Why all this prattle about you wanting to obtain a divorce from me? Go ahead and get your divorce, I won't bother you.
JIMMIE.'" apparently was not considered by the Supreme Court of Onondaga County to constitute a notice of appearance. The facts in that case, however, clearly show that the defendant went to the State of Ohio for no other purpose but to obtain a decree of divorce and evidently did not change her abode, residence or domicile from the State of New York.
(
supra) is quite explicit that intent to establish residence or domicile is a fact to be taken into consideration as to whether or not one has established a domicile. Anomalies occur in the law. It would seem incongruous that persons may enter upon a valid marital relationship; yet, in spite of the rights that the relationship confers upon both to that relationship, it is claimed a divorce decree may not be granted because a party to the marriage was in the jurisdiction of the court on a transit visa issued by the United States Government. If the marriage had taken place it might have been induced by fraud. One of the parties may forsooth be innocent, incapable of entering into a valid marriage, or fraud might be practiced to induce the marriage. If a divorce action is not maintainable because the party suing here is on a transit visa, it would seem that no proceeding for an annulment would be entertained. That appears anomalous. As already said, marriage confers obligations and it also confers rights, and these rights cannot possibly be limited to one of the parties; they must be enjoyed equally by both of the parties. If the citizen may sue for divorce from a person who is here on a transit visa, it would be discriminatory against such person if he were denied equal opportunities and protection of the law, and the right to enjoy the same rights. On all the facts and evidence in the case and the exhibits in evidence, the petition is dismissed. [*] Names used herein are fictitious for purposes of publication.