69 Eq.

PITNEY, V. C.

Avakian v. Avakian.

I have now to consider the questions reserved at the hearing, namely:

1. Whether this court has jurisdiction of the subject-matter of the cause, considering that the marriage ceremony was performed in England and the defendant is domiciled in Boston, Massachusetts, and that the complainant, at the time the bill was filed, was residing merely, and had resided for a short time only, with her aunt in Hoboken, New Jersey.

The general jurisdiction of this court over the subject-matter of the suit was thoroughly settled by the court of errors and appeals in the well-known case of Carris v. Carris, 24 N. J. Eq. (9 C. E. Gr.) 516. That, indeed, was a case of pure fraud, but, in the carefully-considered opinion of Judge Bedle, he expressly includes the case of duress.

At p. 518, he uses this language: "And so in case of consent extorted by duress, where there may be a color of marriage, yet lacking the element of consent, which is necessary in every marriage."

The decision, however, has for its ultimate basis the ground that the jurisdiction exercised by the English ecclesiastical courts of annulling marriages on the ground of an inherent vice in the original contract had, in this state, of necessity devolved on the court of chancery, and the English cases hereafter to be cited will show that the English courts have, on several occasions, annulled marriages which had been procured by fraudulent duress.

The case of Ferlut v. Gojon, Hopk. Ch. 478, cited in Carris v. Carris, supra, is peculiarly in point in support of the dictum of Judge Bedle above quoted. I shall have occasion to refer to this case further on, but mention it now for the purpose of calling particular attention to the learned, exhaustive and instructive argument of Counsellor Sampson, printed at length on p. 481 et seq.

It is now well settled that marriage is a civil contract, and so treated by the civil courts.

Its peculiarity, however, as pointed out by Judge Bedle, in

Carris v. Carris, is that while it is essentially a contract between the husband and wife, there is also a third party to the contract, namely, society at large, represented by the civil authority, in which the parties or either of them may at any time come and reside.

The promise made by each spouse to the other is also made to society, and all of them are continuing promises, and binding wherever the parties or either of them go and reside. The marriage contract, then, cannot be disturbed by judicial power without taking into consideration the rights of the public, or, as we sometimes express it, public policy, as it exists in the place where appeal is made to the judical authorities.

Now, in the present case, the complainant came to New Jersey with her aunt early in March, 1902, and fixed her residence with her. She had no other place to which to go, except to remain with her husband in Boston. Her parents lived and still live in Turkish Armenia. Her husband was duly served with process in this suit and duly appeared thereto by a solicitor of this court and answered the bill of complaint without objection to the jurisdiction of the court. The jurisdiction of this court over the person of the defendant is complete. The disposition and ability of this court to represent and take care of the public is indisputable, and I know of no difference in the public policy of the State of Massachusetts, where the defendant resides, and that of the State of New Jersey, where the complainant resides.

The evidence establishes clearly her intention, when she came here, to make New Jersey her home, and there is not the least room to suppose that she came with the intention merely of bringing this suit. Hence I can see no reason to doubt the jurisdiction in the matter of residence of either of the parties. But the counsel takes the ground that the complainant had no domicile, as distinguished from mere residence, in New Jersey at the time the suit was brought; that her domicile was either with her father, in the city of Diarbekir, in Turkish Armenia, or with her husband, in Boston; and that without domicile of one of the parties the court had no jurisdiction.

In support of that contention he cites the ex parte case of Blumenthal v. Tannenholz, 31 N. J. Eq. (4 Stew.) 194, where Chancellor Runyon refused a decree of nullity under the following circumstances: He says that at the time of the marriage neither of the parties resided in this state, "the defendant does not now reside here, he has not been served with process. The complainant was, when the suit was brought, and still is, a minor. There is no evidence that she has been emancipated, but, on the other hand, the evidence is to the contrary." The suit was ex parte; the defendant did not appear.

This statement distinguishes that case from the present. Here the defendant was placed by her father, who lived, as we have seen, in Turkish Armenia, in the hands of one Takajian, to be escorted, according to the complainant's account, to the home of her aunt, her mother's sister, Mrs. Mariam Boyajian, who lived with her husband in Hoboken, New Jersey, and, according to the account of the escort, she was brought to New Jersey to be married to the escort's son, who also lived in New Jersey. In either case New Jersey was to be her home.

It follows from this that she did, by her father's command, change her domicile to the State of New Jersey, and this is true whether her story, as to the object of her journey, or that of her escort, be accepted as the true one.

Further, in the case before Chancellor Runyon, the jurisdiction of the court over the person of the defendant depended absolutely and solely upon there being a domicile in New Jersey of one of the parties.

Without such domicile there is no such res in the state as would give the court jurisdiction to proceed against the defendant in the absence of service within the jurisdiction. Coddington v. Coddington, 20 N. J. Eq. (5 C. E. Gr.) 263.

I have heretofore had occasion to deal with this question in Watkinson v. Watkinson, 67 N. J. Eq. 142, and in Wallace v. Wallace, 62 N. J. Eq. (17 Dick.) 509 (at pp. 514, 519, 520 and 521). See Haddock v. Haddock, 201 U. S. 562.

But the same stringency as to domicile is not required in a case which is free from collusion and where the complainant is

actually residing in the state and the defendant is served here and appears. Pohlman v. Pohlman, 60 N. J. Eq. (15 Dick.) 28. The notion that the domicile of the wife follows that of her husband has little or no practical application to suits between husband and wife, since, if the wife was justified in leaving her husband, she thereby became entitled to adopt a new domicile, and if she was not so justified she will fail in her suit on the merits.

But another important consideration intervenes. The jurisdiction of this court over the subject-matter of this cause is not based upon or derived from the divorce statute. Hence it is not limited by any of the terms of that statute as to residence, &c. It is based on the original inherent and general jurisdiction of this court over questions arising out of contracts inter partes, and is exercised over contracts of marriage in which is found some vice inherent in their origin precisely as in cases arising out of ordinary contract.

In ordinary cases of contract the defendant must be served with process within the territorial jurisdiction in order to obtain jurisdiction of his person. This has been done here. He has appeared by a solicitor and answered the bill without taking any exceptions either to the jurisdiction of the subject-matter or of his person. Under these circumstances I am not sure that any residence on the part of complainant is necessary.

I shall add the suggestion that this action is not properly classified as a suit for a divorce which is almost universally based upon some cause of action arising after the marriage and which dissolves a valid marriage. The exception in our statute is the provision for a declaration of nullity based on incapacity, &c.

Further, the complainant's right to relief does not depend upon the question whether the marriage ceremony was void ab initio or only voidable.

We may assume in this instance that it was valid by the law of England and was voidable at the option of the complainant.

In so assuming we shall simply range it with ordinary contracts which have been obtained by fraud or duress. The general rule is that such contracts are binding on the wrong-doer and voidable at the option of the injured party.

I have examined all the authorities cited by counsel for defendant and find in them nothing to disturb the conclusion that the court has full jurisdiction of this cause. The most striking of them are cases where the question of jurisdiction based on extra-territorial service was involved.

Of the power of the court to annul a marriage, solemnized in another jurisdiction, there can be no doubt. It was exercised in the eighteenth century by the English ecclesiastical court in Harford v. Morris, 2 Hagg. Cons. 423, and in Scrimshire v. Scrimshire, 2 Hagg. Cons. 395.

The next question reserved was, whether the duress, so called, to which the complainant was subjected at the time of the ceremony, was sufficient to justify the annulment of the marriage.

I think it worth while to remark, just here, that while public policy is deeply interested in the permanency and inviolability of the marriage contract, it is equally interested in having it entered into by persons of competent age and judgment, reasonably suited to each other by age, temperament and disposition, and hence it encourages and almost requires that young persons and especially young females at this crisis of their lives. should have the aid, assistance and sanction of their parents and guardians, if any, or friends and relatives occupying the position of parents and guardians.

The books abound in cases based on the wrong of abducting a young female and inducing her to enter into a marriage contract without the supervision and sanction of her parents or other persons standing in loco parentis, and all well-considered codes of law provide for criminal proceedings in such cases.

They are found in our code in 1 Gen. Stat. p. 1063 §§ 79, 81, 82, 197, 250. The last-cited section adjudges it a misdemeanor to have carnal intercourse with any woman under the age of sixteen years with or without her consent.

Section 81 provides that if any person shall unlawfully take any maid, widow or wife contrary to her will, and shall marry her himself or cause or procure her to be married to another, either with or without her consent, he shall be deemed guilty of a high misdemeanor, and every such marriage shall be void.

Section 82 provides that if any person shall unlawfully convey