Atherton v. Atherton

This was a suit brought January 11, 1893, in the supreme court of the state of New York, by Mary G. Atherton against Peter Lee Atherton, for a divorce from bed and board, for the custody of the child of the parties, and for the support of the plaintiff and the child, on the ground of cruel and abusive treatment of the plaintiff by the defendant. The defendant appeared in the case; and at a trial by the court without a jury at June term, 1893, the court found the following facts:

On October 17, 1888, the parties were married at Clinton, Oneida County, New York, the plaintiff being a resident of that place, and the defendant a resident of Louisville, Kentucky. Immediately after the marriage, the parties went to and resided at Louisville, in the house with the defendant's parents, had a child born to them on January 8, 1890, and there continued to reside as husband and wife until October 3, 1891. Then, owing to his cruel and abusive treatment, without fault on her part, she left him, taking the child with her, and in a few days thereafter, returned to her mother at Clinton, and has ever since resided there with her mother, and is a resident and domiciled in the state of New York, and has not lived or cohabited with the defendant. When she so left him and went to Clinton, she did so with the purpose and intention of not returning to the State of Kentucky, but of permanently residing in the State of New York; and this purpose and intention were understood by the defendant at the time, and were contemplated and evidenced by an agreement entered into, at Louisville, October 10, 1891, by the parties and one Henry P. Goodenow, under advice of counsel, which is copied in the margin. The defendant continued to reside in Louisville, and is a resident of the State of Kentucky.

The defendant, in his answer, besides denying the cruelty charged, set up a decree of divorce from the bond of matrimony, obtained by him against his wife March 14, 1893, in a court of Jefferson County, in the State of Kentucky, empowered to grant divorces, by which 'this action having come on to be heard upon the pleadings, report of attorney for the absent defendant, and the evidence, and the court being advised, it is considered by the court that the plaintiff, Peter Lee Atherton, has resided in Jefferson county, Kentucky, continuously for ten years last past; and that he and the defendant, Mary G. Atherton, were married on the 17th day of October, 1888; that from the date of said marriage the said plaintiff and defendant resided in Jefferson county, Kentucky; that while the plaintiff and defendant were thus residing in Jefferson county, Kentucky, to wit, in the month of October, 1891, the defendant, Mary G. Atherton, without fault upon the part of the plaintiff, abandoned him, and that said abandonment has continued without interruption from that time to this, and at the filing of the petition herein had existed for more than one year; that the defendant, Mary G. Atherton, had, at the filing of the petition herein, been absent from this state for more than four months; that therefore it is further considered and adjudged by the court that the plaintiff, Peter Lee Atherton, is entitled to the decree of divorce prayed for in this petition, and that the bonds of matrimony between the said plaintiff, Peter Lee Atherton, and the said defendant, Mary G. Atherton, be and they are hereby dissolved.'

By the record of that decree, duly verified, the following appeared: On December 28, 1892, the plaintiff filed a petition under oath, containing the same statements as the decree, and also stating 'that the said defendant may be found in Clinton, state of New York, and that in said Clinton is kept the postoffice which is nearest to the place where the defendant may be found.' On the same day, pursuant to the requirements of the statutes of Kentucky, the clerk made an order warning the defendant to appear within sixty days and answer the petition, and appointing John C. Walker, an attorney of the court, to defend for her and in her behalf, and to inform her of the nature and pendency of the suit. On February 9, 1893, Walker filed his report, in which he stated: 'On this, the 5th day of January, 1893, I wrote to said defendant, Mary G. Atherton, at Clinton, in the state of New York, fully advising her of the objects and purposes of this action, stating therein a substantial copy of the petition, etc., plainly directed said letter to her at said place, paid the postage, had printed on the envelope inclosing it, 'If not delivered in ten days return to Jno. C. Walker, attorney at law, No. 516 West Jefferson street, Louisville, Ky.' Said letter has not been returned to me. I have received no answer thereto from said defendant or anyone else for her, and do not know, nor am I advised, of any defense to make for her, and make none, only that which the law in such cases makes for nonresident defendants.' The agreement of October 10, 1891, before mentioned, and certain depositions, set forth in full, taken at various dates from February 23 to March 3, 1893, were filed in the cause in Kentucky before the hearing.

It was agreed that either party might refer to any statute of the state of Kentucky or decision of its courts.

The supreme court of New York found that the wife 'was not personally served with process within the state of Kentucky, or at all; nor did she in any manner appear, or authorize an appearance for her, in the said action and proceeding;' and that before the commencement of that suit, and ever since, she had ceased to be a resident of Kentucky, and had become and was a resident of the state of New York, domiciled and residing in Clinton, with her child.

The court decided that the decree in Kentucky was inoperative and void as against the wife, and no bar to this action; and gave judgment in her favor for a divorce from bed and board, and for the custody of the child, and for the support of herself and the child.

That judgment was affirmed by the general term of the supreme court of New York, and by the court of appeals of the state. 82 Hun, 179, 31 N. Y. Supp. 977, 155 N. Y. 129, 40 L. R. A. 291, 49 N. E. 933.

The defendant sued out this writ of error, on the ground that the judgment did not give full faith and credit to the decree of the court in Kentucky, as required by the Constitution and laws of the United States.

Messrs. Alexander Pope Humphrey and George M. Davie for plaintiff in error.

Mr. William Kernan for defendant in error.

Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: