Opinion
July Term, 1897.
L.E. Prendergast, for the appellant.
Charles Blandy, for the respondent.
By the judgment appealed from, an absolute divorce was granted to the plaintiff from the defendant on the ground of the adultery of the latter. That adultery consisted in her cohabitation with another man than the plaintiff, with which other man she entered into a ceremonial marriage in North Dakota, on September 24, 1896, and with whom she has since lived and cohabited as his wife in the city of New York. She claims as a defense to this action that her present so-called matrimonial relations with the man she married in Dakota are not adulterous, and that her cohabitation with him is lawful and innocent, and in support of that contention she asserts that eight days prior to her North Dakota marriage she obtained a decree of divorce in that State from the plaintiff. That such a decree was entered is proven, but it is also proven that the plaintiff was never served with process in that action in North Dakota, but was personally served therewith in the State of New York, and that he did not appear therein and was never a resident of North Dakota. It is conceded that the Dakota decree of divorce is within this State an absolute nullity as affecting the plaintiff, but the claim is, that defendant was lawfully divorced in North Dakota, was at liberty to marry there, and that her contract of marriage made there being valid by the law of that State she is not guilty of adultery in maintaining her existing matrimonial relations with the person she married there. It is unnecessary to discuss the question of the validity of the defendant's second marriage as between the parties to it and under the law of North Dakota. Under the law of this State the marriage between the plaintiff and the defendant was not dissolved by the decree of the Dakota court. The defendant still remained the wife of the plaintiff and while so remaining she cohabited with another man and lived with him matrimonally. The intercourse which results from such a relation, with a man other than the plaintiff, constitutes adultery. The status of the defendant in the courts of this State as to the plaintiff is to be fixed and defined by the law of this State and not by that of the State of North Dakota. The plaintiff was entitled to sue here for a divorce ( Bell v. Bell, 4 App. Div 527, and cases there cited), and his action must necessarily proceed upon the basis that his marriage with the defendant was in this State still intact and undissolved. He was her husband, she his wife, and while that relation existed she had sexual relations with another man. What contract she voluntarily made with that other man is of no consequence as affecting this plaintiff. It is her act that constitutes the offense, and no matter under what claimed sanction she may have performed it, she cannot excuse it as to him, or keep him bound to that marriage by claiming immunity through a decree of a foreign tribunal in nowise binding upon him in this jurisdiction, and which cannot here take away or impair his right in any respect.
The only subject remaining is that provision of the decree which awards the custody of the child to the father. He was entitled to it and should have it. On this record the mother is an unfit person to bring up the child, she having, as adjudged, been guilty of adultery. It is needless to narrate the circumstances of deceit under which she left her husband ostensibly to make a visit to friends in Minnesota, but really, as the event shows, to gain a ninety days' residence in Dakota to qualify herself to procure an absolute divorce, which was followed by her remarriage eight days after that decree was obtained. She left her child behind her with its father. He was thought to be a proper custodian of that child while she was in the far west seeking a divorce from the father of her child, and a technical justification for repudiating him and marrying another man. The court below was right in leaving the child just where the mother left it when she deserted it, and where it should remain until the further order of the court as the decree provides.
The judgment is affirmed, with costs.
VAN BRUNT, P.J., WILLIAMS, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment affirmed, with costs.