
    Henry P. McGown, Jr., Plaintiff, v. Mary E. McGown, Answering under the Name of Mary E. Bell, Defendant.
    (Supreme Court, New York Special Term,
    December, 1896.)
    1. Husband and wife — Residence.
    Unless for sufficient cause, ,a wife’s residence is with her. husband and she cannot acquire a foreign residence, without his consent, for the express purpose of procuring a divorce. ' ■
    
      2. Divorce — Foreign.
    A divorce obtained in a foreign state against a resident of this state, without service upon or appearance by the defendant, will not be recognized here.
    3. Marriage — Validity.
    Where a wife procures a foreign divorce, without service of process upon or appearance by her husband and immediately marries another man, with whom she returns to this state, such marriage, although valid in the state in which it was celebrated, will not be recognized by the courts of this state.
    4. Divorce — Custody of child.
    Where a wife has left home, procured an invalid foreign divorce and married another man with whom she is living, the court will not take the child from the custody of the husband, who is innocent of all wrong and faithfully performs his duty to it, and. give it to her.
    Action for divorce.
    Henry P. McGown, Jr. (Charles Blandy, of counsel), for plaintiff.
    Earley & Prendergrest (E. C. James, of counsel), for defendant.
   Russell, J,

Since the. views of the court, orally expressed at. the trial of this' action, counsel, have submitted briefs, that of the plaintiff relating solely to the custody of the child. The "counsel for the defendant, however, again urges that judgment should go for the defendant, and that she should have the care of the child, notwithstanding the events disclosed upon the trial.

The parties were married in the year 1887, at the city of Yew York, and lived together until the 24th of April, 1896, without discord, so far as any evidence was given. On that day the defendant left her.home in Yew York city, leaving a note for her husband in which she stated that she was going to Minnesota with-her brother and sister and would be back in a few days. She proceeded directly to Fargo, Yorth Dakota, where she stayed for ninety days, and then, under the laws of that state, brought an action for divorce on the ground of cruelty, the summons in which was not served on the husband within the jurisdiction of Yorth Dakota, nor did he appear in that action. Judgment was obtained in form dissolving the marriage by the District Court of Yorth Dakota, and on the 24th of September, 1896, five months after she left her husband and child in the city of Yew York, she marries, in the state of Yorth Dakota, a Mr. Bell. She returns to Yew York city immediately with Mr. Bell, and has since lived with him there as his wife.

It is strenuously maintained by counsel for the defendant, that because the defendant gained what the courts of Dakota were pleased to call a residence for ninety days, yet as they have recognized the wife’s power to select her own domicile and have taken jurisdiction of the status' of the marriage which did not occur within the borders of Yorth Dakota, and pronounced judgment that the marriage be dissolved, therefore such judgment must be recognized even in the state of Yew York, where the marriage was contracted, and where the husband continuously resided. Counsel for defendant also maintains that even if this.conclusion be not lawfully reached, and the Yorth Dakota judgment of divorce be ineffective one hour before her second marriage, yet, in view of the usual rule that the marriage contract is governed by the laws of the state in which it is contracted, her second marriage being lawful in Dakota under its peculiar statutory laws, it must be valid-everywhere, and even in the state of Yew York.

These claims are manifestly unsound. The domicile of the wife is the residence of her husband. While there are exceptional circumstances which justify the living apart from the husband against his will, and while a residence away from him may be gained by his consent, still for legal purposes, unless for sufficient cause, the wife’s place is at the home of. her husband and child, and she cannot acquire a foreign residence for the express purpose of freeing herself from the charge of violation of duty and exempting herself from its obligations.’

Nor if she had gained a residence in the state of North Dakota, "would her suit there have been effective. To sever the marriage tie by judicial force the courts must gain jurisdiction by personal service of process upon the defendant, or by his voluntary appearance. While an erroneous judgment, which is erroneous only because of departure from just and regular procedure, can only be reviewed by motion in the court which pronounced it, or by appeal from the judgment, yet a usurpation of jurisdiction of the cause from the beginning can always be demonstrated collaterally to show that that judgment was not based upon any initiatory proceeding to which the defendant was a party other than by name. '

This must' be especially the principle to be adhered to if the sacredness of the marriage relation is to • be preserved in this country and its force not to be cast off at the pleasure of either party, in a case where the wife, without warning of her purpose, leaves her home with the object of a temporary stay in a distant state long enough to avail .herself of its lax laws to-procure a judicial dissolution of her marriage contract for the purpose of marrying another, consummates that purpose as speedily as possible, and returns with.the one for whom she has left her husband and child to reside in the same city which was her former home and all within a period of less than half a year. The law'is too well settled to consider this defense further. Bell v. Bell, 4 App. Div. 527, decided by the Appellate- Division in this' department, the opinion of Justice Follett citing the leading cases in this state and in the Supreme Court of the United States. When she went through With the form of a marriage on the 26th of September, 1896, to Bell she was still the lawful wife of the plaintiff in this action. Hér own wrongdoing, therefore, cannot render valid the judgment of a North Dakota court which but for that act would have been wholly invalid.

Nor can I agree with the counsel for -the defense that she should have the custody of the child upon the plea that the only cause of complaint with reference to that child has • been her absence from it for a few months. I have no doubt that she Was,,-.up to her departure, a tender and loving mother, and that she yearns for the companionship .of her offspring and would exert her utmost ability to cherish and properly educate him. jSTor is there. any doubt but that ordinarily a mother’s care, is most useful for a child, of tender years, and that she ought to have at least equal voice in his management and immediate supervision. But this mother now asks that the child, which she left to form an 'alliance with another man than its father and her husband, shall be forcibly taken from that father and husband who has always performed his duty faithfully, both towards her and the child itself, to the household and parental guardianship of one alien to,the husband and child, and for whose society she left h'er husband’s home forever. The separation between mother and child was not the husband’s doings; it was her own voluntary act which’ cannot now be remedied because of the persistence with which the steps were followed which consummated that separation. That husband is entirely innocent of all wrongdoing; has faithfully performed his duty to the mother and the child; the child is happy in the father’s care; and no circumstances appear which would justify any court, compelled to decide by a necessity created by the act of the defendant, in taking a child from the custody of the innocent parent and giving it to the one whose willful act of wrongdoing prevented the joint custody of both parents.

I must, therefore, award the custody of the child to the plaintiff, leaving it to his discretion to allow the mother access at some future time under such circumstances as he' with the knowledge of the situation may think proper. The time may come, if sight of and conversation with the child should be denied to the mother, when •this court may be willing to entertain an application by the mother for access to the presence of the child, and, "therefore, the judgment will provide for the custody until the further order of the court. But it is not deemed by this court at present probable that such a necessity for an application will arise, for time, which softens all asperities, will change perhaps the present attitude of the parties to one of partial forgetfulness of the causes which have brought about the separation, and may also bring a forbearance on the part of the husband in the assertion of his legal parental rights in their severest form.

Ordered accordingly.  