
    Martha G. Woolworth, Respondent, v. Herbert G. Woolworth, Appellant.
    First Department,
    November 5, 1906.
    Husband and wife—jurisdiction in action for separation — when process in contempt proceedings for failure to pay alimony may be served without the State — amount of fine.
    When parties were married in this State which was the matrimonial domicile of both, the husband by removing from the State after being defeated in an action for divorce brought against his wife in the courts of this State, does not oust the State courts of j urisdiction of a subsequent suit for separation brought by the wife.
    In such action the court acquires jurisdiction of the defendant through service by publication, and an order requiring the payment of alimony may be served on him personally without the State, and on his resident attorney of record, and such service furnishes a basis for a subsequent order adjudging the defendant in contempt for failing to pay such alimony after a personal demand made . upon him without the State.
    Such defendant who admits personal service in another State of a certified copy of the order to pay alimony and also an order to show cause why he should not be adjudged in contempt for failing to pay, and who appears in our courts by attorney and presents a defense to the cause of action confers jurisdiction on the 'Special Term to issue an order to show cause.
    But in fining such defendant for contempt, the amount should be limited to the sum due at the time of the demand for payment.
    Appeal by the defendant, Herbert G. Wool worth, from certain portions of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of July, 1906, adjudging the defendant guilty of contempt of court for the non-payment of alimony pendente lite and of counsel fees,
    
      
      Arnold L. Davis, for the appellant,
    
      Alexander S. Bacon, for the respondent..
   Clarke, J.:

The plaintiff and the defendant intermarried at the city of Troy, in the State of New York, .on the 27th day of May, 1897. Both of the parties were born in the State of New York and resided and were domiciled in the city of New York. In January, 1903, the defendant brought an action in the Supreme Court in the county of New York against liis .wife, the plaintiff herein, for an absolute divorce. In said action a verdict was rendered by the jury' in favor of the wife on March 16, 1904, and judgment-was entered ' thereon on April 7, 1904. On the day on which said verdict was rendered the defendant herein left the .city of New York,-where he had,theretofore resided, and went to the State of South Dakota. This action for a separation was begun by the plaintiff herein on May 7, 1904, by the issuance of a summons and complaint, and an attempt was made to- serve the defendant in the State of New York,, but he could not be found; but good service of the summons,- complaint, order of publication and notice, of filing required by law , was made upon the defendant at. Sioux Falls, S. D., on September 17, 1904, two days before the defendant had been six months in South Dakota. On or .about September 21, 1904, the. defendant began an action against his wife in the State of South Dakota-for an' absolute divorce on the ground of desertion and obtained therein a judgment by default and set uj) the said South Dakota decree as a defense in this action.

On the 26th day of January, 1905, an order was made at Special Term in the county of New York in .the action, at bar, the defendant having appeared in such proceeding by an attorney, and having filed affidavits-in opposition, which order directed the defendant to pay to the attorney for the plaintiff, within twenty days after the service of .a copy of" the order,, a. counsel fee of $150 and to' the plaintiff through her attorney the sum of $10 per week as alimony pending this litigation from the 17th day -of September, 19Ó4.. A ■ certified copy of this order was served on the defendant at Sioux Falls, S. D., and another certified copy of the same order was served on him at- Boston, Mass., on August. 16, 1905, and another duly certified copy of the same order was served on the defendant at Boston, Mass., on the 21st day of September, 1905.

It appears by the affidavit of the attorney for the plaintiff, through whom the said order of January 26, 1905, directed the defendant to pay the sum of ten dollars per week as alimony to the plaintiff, that on the 21st day of September, 1905, at the city of Boston, Mass., he demanded from the defendant payment of the alimony and counsel fee under said order and defendant declared ■ that he would not pay the same in any circumstances whatever; that the defendant further declared to him at said time that liis headquarters were then in Boston and that it was not his purpose to return to New York as long as these matters were pending, and that he had no property.in New York, and that it would do plaintiff no good to get a judgment therein. Thereafter the trial of the separation action came on, the defendant appearing by his attorney, and resulted in a decree of the Special Term of this court in favor of the plaintiff against- the defendant. From said decree the defendant took an appeal to this court by the same attorney who represented him upon the trial and in the proceedings leading up to the granting of the order for alimony pendente lite and in the proceedings thereafter leading up to the order here appealed from, and in the proceedings in this court, which appeal is still pending.

After the entry of said decree and on the 25th day of May, 1906, an order to show cause was'granted by the Special Term, returnable on the 31st day of May, 1906, why the defendant should not be punished for his contempt in refusing after demand to pay the alimony and counsel fee required by the said order of January 26, 1905, and in said order it was provided that service of a copy of said order on the defendant without the State and on defendant’s attorney should be sufficient. Said order to show cause was served on the defendant .personally at Boston, Mass., on the 26th day of May, 1906, and upon the return of said order the defendant submitted in opposition thereto the affidavit of his attorney and his own affidavit, in which he states, inter alia, That he has read the motion papers on a motion for allowance of counsel fee herein and on a motion brought on by an order to show cause to punish the defendant for contempt herein, heretofore served upon the defendant’s attorney in New York City.”

He does not, in said papers, deny the service upon him either in South Dakota or in Massachusetts of -the three certified copies of the order providing for the payment of alimony pendente Ute, nor does he anywhere deny the averments in the affidavit of the plaintiff’s attorney of a demand made upon him on the 21st day of September, 1905, for the payment of alimony and counsel fee under said order, nor does he deny that to said demand he declared that he would not pay the same in any circumstances, whatever.

Thereafter the order appealed from herein was made on the 30th day of July, 1906, by' which it was adjudged that the defendant “ has been guilty of contempt of this court, to wit, in.having refused and neglected to pay 'to the plaintiff ten dollars per week alimony from September 17th, 1904, until January 17th, 1906, awarded by the order of Mr, Justice Scon1, filed as .aforesaid on January 26th, 1905, to wit, $700, heir." 70 weeks at $10 a week, and haying further refused and neglected to pay to plaintiff’s attorney $150 counsel fee as awarded by the aforesaid order.” And the court having ascer- . tained and determined that the defendant had “ failed to pay the said alimony and counsel fee as aforesaid, and sequestration proceedings would prove futile, and.that such misconduct so complained of lias defeated, impaired, impeded and prejudiced the rights 'and remedies of the plaintiff in this action,” it- was ordered that the defendant is guilty of a contempt of court, and * * * for the contempt aforesaid be and he is hereby fined in the sum of Eight hundred and fifty dollars, which said sum he is hereby ordered and directed to pay to the plaintiff or to her attorney of record for her use and benefit, within ten days after service upon said defendant or his attorney of record of a copy of this order with notice of entry thereof.”-' It was further ordered that in default of said payment plaintiff should be entitled, upon proof thereof, to an order directing the defendant to be imprisoned by the sheriff until the said sum should be paid.

From so much of said order as adjudges the defendant in contempt and provides punishment therefor the defendant appeals.

■ It is claimed by the appellant that in order to give the. court-jurisdiction it was essential that the order to show cause should be served upon the defendant personally within this State. The point is not well taken, At the commencement of this matrimonial litigation it is conceded that the State of New York was the State of matrimonial domicile, and that both parties actually resided and were domiciled within the county of New York, and the defendant in his action against his wife asserted such facts and invoked the jurisdiction of the courts of this State. Immediately upon the rendition of an adverse verdict, and before judgment was entered thereon, he left the State, as it appears from the papers herein, for the deliberate purpose of seeking the courts of another jurisdiction wherein he might succeed although .defeated here. He did not, by such fictitious ' residence, destroy the jurisdiction of the courts of this State over the matrimonial status, and the action of the. wife was, therefore, properly begun in the same tribunal whose jurisdiction the husband had invoked as against her. The courts of this State obtained jurisdiction over him in the suit for separation by publication and service without the State in the manner provided by law. (See Code Civ. Proc. § 438 et segr.) The personal service of the certified copies of the order providing for temporary alimony and the order to show cause made upon him, together with the service upon his attorney of record, who was still invoking on his behalf the appellate jurisdiction of this court in the action in which he had appeared and presented a defense, conferred upon the court at Special Term jurisdiction to make the order appealed from. He had his day in court; there was no judgment by default; he filed his own affidavit in opposition and was represented by counsel.

None of the cases cited presented such questions of fact as are in the matter at bar. It cannot be that a party to a proceeding will be considered to be in court for the purposes of an appeal and for the purpose of reversing and vacating the orders and judgments of this court and at the same time not be amenable to the orders of the court made as a necessary incident to the very judgments and decrees which he is seeking to review.

In our view his rights have been fully protected. He has been duly served with the original order, with proper demand, with the order to show cause, and has had, his day in court.

We think, however, that the order should be modified. The - original order granting alimony pendente lite provided that ten dollars per week should be paid from the 17th- day of. September, 1904. The demand for payment thereunder was made on the 25th day of September, 1905, a period of fifty-three weeks, which at $10 per week would amount to $530, and the counsel fee provided for in said original order was $1501 We think that the fine adjudged in this case must be limited to the amount due at the time that the demand was made, as a demand is a necessary prerequisite in such contempt proceedings.

.The order' therefore, should be modified by changing the date in the order appealed from down to which the defendant refused and neglected to pay from January 17, 1906, to September 25, 1905, and the amount of the fine imposed from $850 to $680, and as so modified affirmed, with $10 costs and disbursements to the respondent upon this appeal.

O’Brien, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with .ten dollars costs and disbursements to respondent,  