BARBER V. BARBER, 62 U. S. 582 (1858)

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U.S. Supreme Court

Barber v. Barber, 62 U.S. 21 How. 582 582 (1858)

Barber v. Barber

62 U.S. (21 How.) 582


This Court disclaims altogether any jurisdiction in the courts of the United States upon the subject of divorce or for the allowance of alimony, either as an original proceeding in chancery or as an incident to a divorce a vinculo or to one from bed and board.

But where a court of competent jurisdiction in New York decreed a divorce a mensa et thoro between man and wife, allowing alimony to the latter, and the husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, without having paid any part

of the alimony, or leaving any estate of any kind out of which it could be paid, the wife can sue by her next friend in a court of the United States, having equity jurisdiction, to recover the amount of alimony decreed by the state court.

A divorce a vinculo, obtained in Wisconsin without a disclosure of the circumstances of the divorce case in New York and upon the allegation by the husband that the wife had willfully abandoned him, cannot release the husband there and everywhere else from his liability to the decree made against him in New York upon that decree's being carried into judgment in a court of another state of this Union or in a court of the United States where the defendant may be found or where he may have acquired a new domicile differing from that which he had in New York when the decree was made there against him.

The cases in England and in the United States examined in which a wife may sue her husband by her next friend.

A court of chancery in England will interfere to compel the payment of alimony which has been decreed to a wife by the ecclesiastical court, and the principal reason for its exercise is equally applicable to courts of equity in the United States. The parties to a cause for a divorce and for alimony are as much bound by a decree for both, which has been given by one of our state courts

Page 62 U. S. 583

having jurisdiction of the subject matter and over the parties as the same parties would be if the decree had been given by the ecclesiastical court of England.

This Court has heretofore decided and now reaffirms that in order to bar the jurisdiction of the courts of the United States in equity, the remedy at law must be as practical and efficacious to the ends of justice and its prompt administration as the remedy in equity, and it is no objection to such equity jurisdiction that there is a remedy under the local law.

After the divorce a mensa et thoro in New York, and the removal of the husband to Wisconsin, the domicile of the wife did not follow that of the husband, but remained unchanged in New York. The jurisdiction of the United States court therefore attached as it respected the different citizenship of the parties.

The American and English authorities upon this point examined.

A wife under a judicial sentence of separation from bed and board is entitled to make a domicile for herself different from that o� her husband; and she may, by her next friend, sue her husband for alimony which he had been decreed to pay as an incident to such divorce, or when it has been given after such a decree by a supplemental bill.

The equity side of the court was the appropriate tribunal before which she was to sue, and the district court of the United States in the State of Wisconsin had jurisdiction over the case.

The facts in the case are stated in the opinion of the Court.

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