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About Omaha daily bee. (Omaha [Neb.]) 187?-1922 | View Entire Issue (Feb. 27, 1916)
IhE'Ommia Sunday Bee Magazine Page t I ou; a Highly Respectable, Worthy Married Woman One State May Instantly Become a Bigamist, and Her Children Be in Disgrace in a Neighboring State By William Hamilton Osborne f the New York and New Jersey Bar. Author, of "Red Mouse," "Catspaw," eto. SOM : I OMEWHERE within a hundred miles the Borough of Manhattan there drawn a line invisible but real . .which separates the State of Connecti- . cut from the State of New York. There may exist perhaps there does exist somewhere along that line a situa tlon apparently unusual, apparently . unique. Actually It is not unusual, not unique. But to the lay mind it is a situa tion the strangest of the strange. Mrs. Cadwalader, we'll say (the name is entirely fictitious), is a virtuous, matron- ly, respectable and highly domestic young woman. She is married to young Cadwalader. They have two children, who are gradually entering their teens. They live, let ns assume, in the State of Con necticut, within a mile of that unseen border line that separates them from New York. They have friends In the State of Con- , nectlcut close friends, intimate friends, who know their whole history, who reo ognlze them as Husband and wife, and as : the legitimate mother and father ot two bright and pleasing children. The Bute of Connecticut, too, knows '. the history of this young couple, and that State, also, recognizes in them concedes to them all the virtues.' But their friends are not confined to citizens' of the State of Connecticut. Across the ' border line, .over in ha State of New York. thAV Vi a v. nH o Ia. n-w. ' M "k"Vl UWUUh 1UCJ U. i. mo ujcw ineuus o ineir noma in.Con- nectlcut, and these friends come. When t these New York- friends in turn invite I- the Cadwaladers to New York, a mile or . f w away, -the situation changes as in the-' , twinkling of an eye. The instant that' the family step across the border line ' tbe status of every Cadwalader undergoes an unseen change. But a change that 1 wofully and terribly real. 7 "' Among their friends on the New York side, who entertain them frequently, la ; a young Member of the bar who knows what's what. The first time the Cadwala ders visited his wife he said to her with solemn Jocularity, after they had gone, that she had been entertaining very shady people. "Cadwalader and his wife, you kno'w," he told his wife, "are not married. She is a bigamist and their children are" ', His wife stopped him there with a hor rified expression. "You may as well understand now," he . continued, "as at any time that when you ; invite the Cadawalders to this house , there ts a huge blot on their escutcheon a terrible stigma rests upon their name. I repeat that when Mrs. Cadwala 1 der comes here she is a bigamist. Cad walader is no better he is no husband of hers, because he was never legally mar ried to her;, and therefore the children can't be called little Cadwaladers at all. f By the way," ha added, "I like Cadwala ' der. Let's go over there to-morrow : ; night." "But." she protests, "you Just said" "Ah," he returns, "when they visit us what I said obtains, but when we visit them Mrs. Cadwalader is Mrs. Cadwal ader indeed; Cadwalader then becomes her legal husband and their children are legitimate, to say the least" "I fall to understand," persists this lawyer's wife. "I know she divorced her first husband, but that made her. free. If she were free she had a right to marry." "It made her free," concedes this mem ber of the bar, "but free In Connecticut only free in the State where she got her divorce not free in New York. Two alias from here Cadwalader and hls'wtfe are a respectable married couple. Two hours ago when they sat at your ma hogany they were nothing of the sort" "But why?" his wife repeats. "I can't understand." The state of mind of the young wife of this young counsellor-at-law is the state of mind of the publlo at large, whenever the public at large finds Itself confronted with a situation of this sort And yet a situation of this sort must nec essarily exist in a very large proportion of the cases where remarriage follows a divorce. It is not too much to say that this remark applies almost generally to very uncontested divorce obtained, we'll ay, at Reno, where the defendant failed to put In an appearance either person ally or by attorney. Thnre Is no douM about the law. vftry lawyer understand, tbe altuatton. Tla U ta aettlad Itw, There is nothing or ruyatarlnne about Its application, tfw) It i true of thousands of cases to thai huabancls tiid wives who are le I.) h'l.i.iuij ud wies In one State of id UuIab are quite another thing in tr Mini. Tom tinn to time i.pwnpapers Sgltate nit sulild. iVtnrla always agitate It V 1th "it tbe last few eart the President f U United Htatea ha appointed a di vorce coumiaaton. known as the National Jiorce Vminlaion, to correct, if pos sible, a situation that becomes more grave not to aay appalling as the years go on. la the flrat place, let It be repeated, that there la no doubt about tbe law. - va cue two typical case. In 1905 the United States Supreme Court, the highest court In the country, rendered a decision in the case of Had dock T8. Haddock. The decision Is re-' ported In Tolume 201 of United States Re ports, page 662. The opinion is a long one. It runs from page 562 to page 633, inclusive, and contains seventy-one closely printed pages of ordinary law book size. . The case of Ransom vs. Ransom, which is reported in 109 New York Supplement, page 1143, la a decision of the Appellate Division in New York, and simply re - peats In terms the policy of Now York State. . It Is not necessary to go further. The United States Supreme Court decision in the Haddock case is supreme and states the law correctly. In that case, Haddock, a Kew Yorker, lived with his wife in the State of Kew York. " Their home or what was called : . their matrimonial domicile was In that State. Haddock left his wife (very likely ' for good cause) and moved to Connect lout, where he took up a bona fide resi dence; in other words, he did not go to Connecticut merely for the purpose of getting a divorce. It must be assumed, because the Supreme Court so finds, that he became a bona fide resident of Con necticut. In that State finally and after some 1 years he began his ault Tor df Vorce." 1 ; x And here arises the aforesaid peculiar situation, which has played havoc with . divorces generally throughout the coun- ' try - He ww in' -Connecticut; lie began his suit in Connecticut. His wife was in New York and resided there. Now in all States the usual method of beginning a suit Is to serve a paper personally upon ' 4 f V W. B. itT., ,9oS Mrs. Blanche Molineux Scott and Child. This Was a Complicated Case Which Caused Anxiety to Her Second Husband, Mr. Scott the defendant that is, upon the party sued within the territorial limits ot the State. That is known as personal ser vice of the summons or by whatever name the summons may be called. Such service is made either through a court of ficer or some third party, who personally delivers the summons to the defendant and personally leaves the same with the defendant within the limts of the Bute. That Is the ubusI means by which the court acquires Jurisdiction over a defend ant in a suit whether the ault be for di vorce or otherwise. A summons is a paper signed by an attorney and sometimes by the clerk of the court notifying the defendant or the commencement ot the suit and warning him of the time within which he must answer if he intends to defend. In the Haddock case, of course, no per sonal service could be made on Mrs. Had dock within the limits of Connecticut She was In New York. For situations such as that the Legislature In each State has provided another mode ot ser vice. Upon due proof made to the court that it is impossible to serve the defend ant personally within the State, the court will make an order, called an order ot publication, directing that the summons or a notice thereof shall be published In one or two newspapers printed in the State and designated in the order, and that In addition to such publication a, copy of the summons shall be mailed to the defendant directed to her last known place of residence, wherever that may be. Now, in the Haddock case, being un able to serve his wife with a summons personally within Connecticut, Haddock, through hla attorney, obtained an order of publication and served her by publica tion and mailing of the summons by whatever name that process may be called in Haddock's State. The suit was undefended; the wife did not appear. By appearance is meant, not the personal appearance of tbe wife be A k V V 1 , l M .s' - ii I i. i LSrwPo Mrs. Elsie Whelen Goelet Clews, Whose Lawyers Were Careful to See That the First Husband Was Properly Served with Notice of the Court Proceedings. fore the court, but merely this: That she employs some attorney to enter with the clerk a memorandum or notice that he appears for her. Such an appearance would give the court Immediate Jurisdic tion, because by that act the wife sub jects herself to the action and to the Judgment of that court But ahe did not appear, nor did her attorney. Had she contested the suit by filing an answer that also would have constituted an ap pearance and would immediately have subjected her to the Jurisdiction of the court Bhe did neither. Therefore the case was uncontested. In due course of time Haddock obtained a decree of absolute divorce granted to him by the courts of the State of Con necticut, It is not material here whether Haddock remarried in Connecticut or not but ao long as he remained within the confines of Connecticut his divorce was valid. He could have remarried there, brought up a new family there, and so long as they stayed within the borders of the State the divorce and remarriage would have been legal there. . Haddock, however, came to New York, and his wife sued him In New York for absolute divorce. In her suit she served him personally, no doubt, but It makes no difference, because New York recog nizes its own service upon him by means of publication, and in New York, after a contest by him, she obtained a decree of divorce or separation. To render that decree in her favor tbe New York court necessarily found that the Connecticut divorce was invalid, because the court had not obtained personal Jurisdiction over her; it necessarily found that she was still Haddock's lawful wife and that he bad never legally divorced himself from her. This decision of the New York court went up through several appellate tri bunals to the New York Court of Appeals and finally to tbe United States Supreme Court, and the United SUtes Suprema Copyright, 191, by tbs Star Company. A 1 " - r N . , J r ! if t I Mrs. Lulu Morris Gebhard Clews, Who, After Marrying and Divorcing the Late Freddie Gebhard, Married and Divorced Henry Clews, Jr. Mr. Clews, in Turn, Married the Beautiful Elsie Whelen, Divorced Wife of Robert Goelet. A Single Haw in Any of These Di vorces Might Have Lamentable Consequences. Court held that the Connecticut divorce was invalid except within the confines of Connecticut; that there it was valid; but that outside of the State of Connecticut it was of no force whatever, and New York was clearly within her rights in re fusing to recognize It. I'ercelve that there is nothing strange or strained in Haddock's attitude In get ting bis divorce. He did not rush to Reno. He acquired a bona-flde residence in Connecticut He took his time. Tbe case of Ransom a New York case Involves facts still more remark ablefacts harrowing In the extreme. Mrs. Ransom, the plaintiff in that case, resided with her husband in New York. New York waa their matrimonial domi cile, Just aa it was in tbe case of Had dock. Mrs. Ransom claimed that her Jiusband was uniformly cruel and brutal Oreat Britain Rlahta Kmnu L . in 7, V ' Mrs. Smith HoUins McKim Vanderbilt Whose Reno Divorce Was Saved from Complications by the Participation of Her Former Husband," Dr. McKlm, in the Proceedings. V:. J In his treatment of her, and that he practically drove her from him. She did the natural thing. Forced to leave him, as she claimed, she went to her old home somewhere In the South. What else was there left to do for a woman lu that peculiar situation? Here was no ruuh to Reno either. Forced from ber matrimonial domicile, she sought her domicile by birth. There, in due time, she brought her suit for ab solute divorce. Again her husband neither appeared In the action, nor did be defend, nor was personal service made upon him within the confines of the State where suit was brought Therefore she served him by publica tion. She obtained her divorce, he married a second husband after. obUra lng her divorce. V.' j Understand, there is la thestTcasea no J v. v Ml W MM m KM' K ' it V -y, f t . w. -i- Ill II Hi trickery, no collusion, no blinding of tha eyes of Justice. The courts are not cor rupt In each case the first divorce waa regularly granted according to the aet tied laws of each Bute involved. Fate took Mrs. Ransom back to New York. Then her first husband, wholly divorced by her in the State of her birth, brought suit In the New York courts against her tor an absolute divorce. Upon what grounds T Upon the ground, her divorce being Invalid, her second husband, therefore, was not her second husband that she was living with him. This contention of the first husband was held correct and the courts of New York, following tbe Haddock case, gave the first husband a divorce. Now note the most peculiar thing of alL Each State, New York Included and by each State is meant each State in the Union provides this peculiar method of serving by publication and mailing where personal service cannot be mads within the limits of the State. Each State recognizes Ita own Judg ments or decrees granted upon such substituted service, but one State will not recognize the deoree of divorce of another State based upon said method, and the United States Supreme Court has practically made the law for all the States. And the grim and ghastly Joke of It all Is this: That tbe State of New York or any other State may, and In fact does, grant decrees of divorce based up on orders ot publication, and in and toy those very same decrees holds a previous Judgment of divorce (granted by another State) invalid, solely because based upon service of process pursuant to an order of publication. By no means is it true that every di vorce granted upon an order of publica tion is invalid, even In another SUte. Many cases are contested cases, and where a defendant contests he or she becomes subject to the Jurisdiction ot the court. Cases not contested, but where an appearance Is entered by an attorney for a defendant, also operate to give tbe court Jurisdiction. In tact, there can be no clearer case of jurisdic tion obtained over a defendant thffh when a defendant voluntarily appeara In aa action by an attorney or solicitor. So that a contested divorce, where the plaintiff is successful, Is valid in every State, speaking generally, and ao is a decree of divorce in an action where aa appearance has been entered. i The difficulty is with tbe vast major ity of uncontested cases. To the lay mind a decree obtained In a case where the defendant utterly falls to appear and answer where he allows the ault to go absolutely by default appears to be an Invulnerable kind of decree. On tha contraiy, however, that Is the divorce decree which must be scrutinized with care. It Is not at all a question as to whether the defendant is guilty ot the offense charged or whether by hia si lence he admits his guilt. The ques tion Is whether he has been subjected to the Jurisdiction of the court, for no Judg ment can be entered against a man in any court unless he has had served upon him lngal process and has had an op portunity to defend if he so deslree. Can this woful condition of affairs be remedied T Will every State In time adopt the same grounds for divorce will the question of divorce become a natter for the courts of the Unite! States the Federal tribunals T That is the question. That Is why tha President appointed the National Divoroa ' Commission