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dation of the community, in which the mat- a divorce carries with it a complete dissoluter in dispute exceeds the sum of $5,000. tion of all the matrimonial ties, and the Removal of causes-from Porto Rican court division of all property and effects between -objection by party causing removal. the parties to the marriage.

2. The party who has wrongfully pro- Judgment — community property -- liquidacured a removal from the local Porto Rican tion--money judgment. court to the Federal district court of a case 7. The objection that the district court within the original jurisdiction conferred of the United States for the district of Porupon the latter court by the act of March to Rico should not have given a money de2, 1901 (31 Stat. at L. 953, chap. 812), § 3, crec in a suit by the wife to obtain the cannot be heard, after judgment against liquidation of the community is not a valid him, to assert that the Federal court had one, where the rights of the wife arise simno jurisdiction, because of the irregularity i ply from an increased value of property or of the removal, although, by the act of assets brought by the husband to the marApril 12. 1900 (31 Stat. at. L. 84, chap. riage, or as a result of the falling into the 191), § 34, it is provided that the laws of community of the revenues of the property the United States relating to the removal of the husband. of causes shall govern as between the dis-Husband and wife-community propertytrict court of the United States for Porto

liquidation-allowance of alimony and exRico and the courts of Porto Rico.

penses of divorce. Husband and wife,-community property- S. The amount of alimony pendente lite rights of divorced wife.

and the expenses incurred by the wife in a 3. A rule of limited forfeiture in lieu divorce suit in a Porto Rico court, which of the rigorous rule of the Spanish law that were sanctioned by that court, are properly the wife against whom a divorce for adul- allowed to the divorced wife in her suit to tery was decreed forfeited all right to her obtain a liquidation of the community and share in the community property was a decree for the payment of her share. adopted for Porto Rico by the provisions of Husband and wife-community propertyCivil Code 1889, art. 73, s 3, Civil Code 1992,

liquidation-allowance of counsel fees. tit. 5, chap. 5, § 174, to the effect that the guilty spouse shall forfeit all gifts from the the district court of the United States for

9. Counsel fees cannot be allowed by innocent party, who shall retain everything the district of Porto Rico to a wife in her which has been acquired from the other.

suit to obtain a liquidation of the commuHusband and wife-community property-nity and a decree for the payment of her rights of divorced wife.

share. 4. The rule of the Spanish law that the wife against whom a judgment of divorce

[No. 72.] for adultery has been decreed forfeits all right to her share in the community prop- Argued October 31 and November 1, 1906. erty does not obtain in Porto Rico because

Decided January 7, 1907. of the provision of Civil Code 1889, art. 1417, Civil Code 1902, § 1330, that the PPEAL from the District Court of the spouse who, by bad faith, has been the A

United States for the District of Porto cause of the nullity of the marriage, shall Rico to review a decree in favor of the wife not have a share in the common property, since this provision relates, not to the dis” in a suit by her for the liquidation of the solution of a marriage by a decree of di- community and the payment to her of her vorce, but to the recognition of the nullity share. Reversed and remanded with direcof a seeming marriage for causes which tions to disallow an award of counsel fees have operated to prevent it from ever hav- and a credit to the community property of ing existed.

the amount of reckless and extravagant Husband and wife-community property-expenditures by the husband. liquidation-accounting for reckless ex

The facts are stated in the opinion. penditures.

Messrs. Charles M. Boerman and Fritz von 5. The power of the husband as the

Briesen for appellants. head and master and administrator of the community property, under Porto Rico Civil

Messrs. Frederic D. McKenney, Francis H. Code 1889, arts. 1412, 1413, Civil Code 1902, Dexter, and John Spalding Flannery for apSS 1327, 1328, is such that, in the absence of pellee. express limitation, he cannot, after the dissolution of the community, be required to Mr. Justice White delivered the opinion account for money which he may have reck of the court: lessly and extravagantly expended during In the district court of Ponce, in October, the existence of the community.

1891, through a representative (next friend), Husband and wife-community property-Juana Dastas, alleged to be a resident of right of divorced wife to liquidation.

woman, com6. A divorced wife is entitled to obtain Porto Rico and a married woman, the liquidation of the community and the menced this suit against her husband, payment to her of her share, under Porto Tomas Garrozi y Pietri, as also against Rico Civil Code, 1902, § 173, providing that I Juana Maria Gonzalez and Domingo Piazzi y Pietri, all three of whom were alleged to be prayed and were allowed a removal. On residents of Porto Rico. We shall here- the filing of the record a motion to remand after speak of the plaintiff as the wife and was made, based upon the fact that the hus. the principal defendant, Garrozi, as the husband's petition for removal contained no band.

27 S. C.-15.

averment of residence. The court refused As far as essential to be considered, the to remand and allowed an amendment alfacts alleged, the cause of action relied on, leging the residence of the husband to be and the proceedings had, up to the pleading in France. by the defendants, are summarized as fol- Without attempting to state the many lows: The marriage took place in May, pleadings which followed, the ultimate is. 1886, and as no antenuptial contract was and the action of the court may be made, their property relations were gov- thus summarized: The petition of the wife erned by the community system under the was amended and reformed, authority being Code of Porto Rico. They lived together given by the court for the prosecution of until November, 1898, when they separated, the suit on her behalf by her representaand the wife, under the direction of the hus- tive or next friend. The petition in its band, resided in a house provided by him. final form was less prolix, and the allegation There she lived until December, 1899, when, was added that the divorce proceeding beowing to the failure of the husband to sup-tween the husband and wife, referred to in port her, she removed to Ponce.

the original petition, had gone to the suThe husband in 1901 sued for a divorce on preme court of Porto Rico, and had hy that the ground of the wife's adultery and she, court been finally decided, decreeing a by a reconventional demand (cross bill), divorce in favor of the husband. The prayed for a divorce on the same ground, prayer for relief was amended to conform to and because of cruel treatment. In this this situation; that is, it was prayed not suit the court awarded the wife

wife $75 a only that the simulated contracts be set month alimony pendente lite. This not aside, but, further, that the community be having been paid, the wife issued execution liquidated, and the wife he awarded her and realized from a sale of certain furni- share. The defense, as finally made on the ture one month's alimony. The remainder part of the husband, as well as the other of the alimony up to the commencement of defendants, was an averment of the good this suit, aggregating $225 and 598 pesos, faith and reality of all the contracts alleged Porto Rican currency, the amount of legal to have been simulated. Moreover, the husexpenses incurred by the wife in defending band denied that there was community the divorce suit, and which had been al property, because nothing had been acquired lowed by the court, were yet unpaid. These during marriage which fell into the comamounts were uncollected because of the munity, and because all the property which apparent insolvency of the husband. This he possessed, even assuming that the asinsolvency was, however, only apparent, be sailed contracts were simulated, was sep. cause there was a large amount of real and arate property, either owned at the date of personal property belonging separately to the marriage or thereafter acquired as a the husband, or to the community, which reinvestment of separate funds. the husband had, with the object of defraud- moreover, specially alleged that, the ing the wife, apparently disposed of by divorce had been decreed against the wife simulated transfers to the defendants on account of her adultery, she had forMaria Gonzalez and Domingo Piazzi. The feited all her interest in the community if character and extent of this property were any community property existed. Besides, detailed as well as the various alleged the right of the wife to compel the liquisimulated contracts, which it was averred dation of the community, even if she had had been made concerning the same. The not forfeited her right to a participation in prayer was that the contracts in question be the community assets, if any, was specially set aside as mere fraudulent simulations, so challenged. as to enable the wife to exert her rights The court appointed an examiner, who therein or thereagainst. The court admit- took and reported the testimony. Under a ted the petition to be filed and authorized stipulation and order the cause was the suit by the wife in the name of her ferred for report to a special master upon representative or next friend. Before the the facts and law. Before the master reday for pleading, the husband, alleging him-ported the wife prayed a receiver and an self to be a citizen and subject of France, injunction, upon averments that the two deand that by operation of law the wife was fendants, to whom it was charged the pa of the same nationality, obtained an order erty of the husband had been seemingly for removal to the court below. Subse- transferred or encumbered by simulated conquently the two other defendants also l tracts, were dealing with the same so as

It was,

as

to dissipate the estate and frustrate the re- sary, to pay the decree in favor of the wife. lief prayed. A receiver was appointed, and on the day after the entry of the final dethe defendants were enjoined as prayed. cree, on motion of the wife, the court passed The report of the special master, as to both a further decree in her favor, directing the the facts and law, substantially sustained payment to her, first, of the sum of $598, the claims of the wife. Exceptions taken awarded to her by the district court of to the report were overruled and the report Ponce as her expenses in the divorce litiwas confirmed. The court below adopted gation, and the sum

sum of $133.50, interest the facts found by the master and reiterat- thereon to the date of the decree; second, ed them in the findings in the nature of a the sum of $885, due for alimony awarded special verdict, made for the purposes of the by the district court of Ponce to the date of present appeal. By those findings all the the decree of divorce; and, third, the sum charges of fraudulent simulation relied upon of $1,500, on account of solicitors' fees in by the wife were found to be true, and, as the pending litigation,--a total of $3,116.50. a legal conclusion, all the property and as- The receiver was directed to pay these sets to which the simulated contracts re- several sums out of any money in his lated were held to belong to the husband. hands, and, in default of sufficient funds, Concerning the community and its liquida execution to enforce against the husband tion, it was found, as a matter of fact, that was authorized. the wife, at the time of the marriage, had The court, in its findings, has stated the no property, and subsequently acquired rulings which were excepted to with renone, whilst the hushand, at the time of the spect to the admission or rejection of evimarriage, was the owner of various assets dence, accompanied with such portions of and described property, which was found to the evidence as it deemed adequate to have been of the value, at the time of the enable a review of such rulings. marriage, of $71,500. The net property of Before coming to the merits we must disthe husband at the date of the dissolution pose of three preliminary questions. First. of the marriage, including all reinvestments The suggestion of a want of jurisdiction in or avails of his separate property existing this court is without merit. Royal Ins. Co. at the time of the marriage, and, allowing v. Martin, 192 U. S. 149, 48 L. ed. 385, 24 for community debts, was found by the Sup. Ct. Rep. 247. Second. The contention court to be $77,000, thus leaving $5,500 as that the court below was without jurisdicthe acquêt or gain of the community, which tion, and that the cause, therefore, should was subject to be divided equally between not be passed upon on the merits, but the husband and wife. In addition, the should be remanded to the court below, with court found that during the marriage the directions to remand to the local court from husband had spent, out of the revenues of which it was removed, is also without his property, which revenues fell into the merit. That the case was within the community, the sum of $47,000, during original jurisdiction of the United States various trips made by him to Europe, and district court of Porto Rico clearly results that these expenditures by the husband, from the broad grant of jurisdiction confrom revenue which belonged to the com- ferred by the 3d section of the act of March munity, were unreasonable to the extent of 2, 1901 (31 Stat. at L. 953, chap. 812), $22,000. From the facts thus found, as a reading as follows: matter of law, it was concluded that the "That the jurisdiction of the district court $22,000 should be treated as an existing of the United States for Porto Rico in civil acquet of the community, subject to be equal. cases shall, in addition to that conferred by ly divided between the parties. The sum, the act of April twelfth, nineteen hundred therefore, of the community property for [31 Stat. at L. 77, chap. 191], extend to and distribution, was fixed at $27,500, the wife's embrace controversies where the parties, or share, therefore, being $13,750. The court either of them, are citizens of the United in its final decree annulled the simulated States, or citizens or subjects of a foreign contracts, and decreed the property to which state or states, wherein the matter in dissuch contracts related to belong to the hus-pute exceeds, exclusive of interest or costs, band, and, fixing the sum of the community the sum or value of one thousand dollars.” as above stated, a money decree was entered The assertion of the want of jurisdiction in favor of the wife for her share thereof,- in the court below rests, however, not upon $13,750. The decree reserved the right of a denial of power in that court to have the court to make such further orders as entertained the controversy if the suit had might be necessary, the receiver was direct- been originally brought there, but upon the ed to make full report, and a special master contention that, as a defendant other than was appointed with power to sell the prop- the husband was a resident and citizen of erty in the custody of the receiver, if neces- Porto Rico, the cause was improperly removed from the local court. And the heard, after judgment against him, to asproposition goes to the extent of insisting sert that the United States court was wantthat such want of jurisdiction may be as-ing in jurisdiction solely on the ground that serted by the person who procured the re- the case was erroneously removed. moval, who resisted the effort to remand, 3. The objections to rulings made by the and when the want of jurisdiction is only court in admitting and rejecting evidence suggested after trial and final decree. The are numerous. We shall not undertake to premise upon which these contentions are review them in detail or state at length our based is a portion of the text of the 34th conclusions concerning them, contenting oursection of what is known as the Foraker selves with saying that, after examining act (act of April 12, 1900, 31 Stat. at L. 84, them all, we think they are without foundachap. 191) which provides that,

tion, either because fundamentally unsound "The laws of the United States relating or because the objections concerned not the to appeals, writs of error and certiorari, re- admissibility but the mere weight of the moval of causes, and other matters and pro- evidence offered or rejected, or because the ceedings as between the courts of the Unit- record is not in such a condition as to ened States and the courts of the several able us to overcome the strong impression states, shall govern in such matters and pro- we form that no prejudicial error resulted ceedings as between the district court of from the rulings complained of. the United States (for Porto Rico] and the

The conclusive effect of the facts found courts of Porto Rico."

below narrows the issues. Thus the finding Without so deciding, we concede, for the that the contracts were fraudulent simulasake of the argument, that where the pow- tions sustains the legal conclusion that the er to remove from a state court to a court property to which the contracts related beof the United States is restricted by statute longed to the husband, and therefore that to a certain class of cases, a removal operat- subject is put out of view. Again, as the ed contrary to the statute does not devest facts found concerning the sum of the propthe state court of jurisdiction, and, there. erty owned by the husband at the date of fore, does not confer jurisdiction on the the marriage and the amount owned by court to which the cause has been wrong- him at the date of the dissolution of the fully removed, even although the cause may community by the divorce sustain the conhave been one of which such court might clusion that the difference between the two have taken jurisdiction originally. So, al was an acquêt or gain of the community, so, we concede for argument sake that in to be divided equally, that question need such a case the party wrongfully procuring not be further considered. In order, therethe removal may escape the effect of a fore, to dispose of the entire controversy, it judgment rendered against him in the forum will be necessary to decide only four questo which he voluntarily resorted, by sug- tions: First, whether the wife, as a consegesting after judgment the want of power quence of the judgment of divorce rendered to remove. But these concessions are not against her, had forfeited her interest in decisive of the case at bar, because of the the community, if there was any such inextent of the jurisdiction conferred upon terest. Second, whether error of law was the United States court in Porto Rico by committed in crediting the community with the act of 1901; that is to say, in conse- $22,000, the amount expended by the husquence of the enlarged character of the ju- band for traveling and medical expenses risdiction conferred by that act, and the ob- during the years 1889 and 1890, and during vious departure which it manifests from the the years 1895 to 1898, both inclusive, upon principles controlling the jurisdiction of a the ground that such expenditures were unUnited States court as contradistinguished reasonable and extravagant, and therefore from a state court, we do not think the rule created an obligation on his part to return which demarks the line between the courts the amount to the community as an acquêt of the United States and state courts with or gain thereof. Third, if there in the removal act should be held applica- due the wife any amount on account of ble to Porto Rico to the extent which might her interest in the community, and such inhave obtained had the act of 1901 not been terest had not been forfeited, was she enenacted. We conclude, therefore, that where titled, as a divorced wife, to provoke a liquia case is removed from the iocal Porto Ri- dation of the community, and to a degree in can court to the United States court, over her favor for the amount, if any, of her inwhich case the latter court would have had terest in such community? Fourth, did the jurisdiction as to all the parties impleaded court below err as a matter of law, in adif the case had been there originally brought, dition to giving the wife a decree for her even though the removal was irregular, the interest in the community, in allowing her party who caused the removal cannot be the sum of the alimoney pendente lite de

was

creed in her favor by the local court up to one of the counsel, that, despite the change the date of the divorce, the sum of her ex- in the Code to which we have referred, the penses in the divorce suit which had been old rule of forfeiture should be held to obapproved by the local court, and an addi- tain, 'because of the provision of article 1417 tional sum of $1,500 for the services of the of the Code of 1889 and § 1330 of the Code counsel of the wife in the cause.

of 1902, saying: “The spouse who, by bad 1. It may be conceded that, by the law of faith, has been the cause of the nullity (of Spain, prior to the adoption of the Spanish the marriage), shall not have a share in Civil Code, the wife against whom a judg- the common property,” rests upon a mere ment of divorce for adultery was decreed misconception. The provision relied on in forfeited all right to her share in the com- both the Codes relates not to the dissolumunity existing between herself and hus- tion of a marriage by a decree of divorce band. But that rigorous rule was not in- or for any other cause, but to the recognicorporated into the Spanish Civil Code, tion of the nullity of a seeming marriage which was in force in the island of Porto for causes which have operated to prevent Rico when the territory was

the territory was acquired. the marriage from having ever existed. In Spanish Code of 1889, War Department other words, the distinction between the artranslation, title 4, § 5, articles 67 et seq. ticle relied upon and the other articles to Such forfeiture, moreover, did not obtain which we have previously referred is that in the Porto Rican Civil Code, adopted after which obtains between a decree of a court the acquisition of the island by the United dissolving a marriage which has existed and States, and which was in force in that is a decree establishing that there never had land when the decree of divorce which was been a marriage to dissolve. The pertinency here involved was rendered. Porto Rico, of this distinction again becomes manifest Civil Code 1902, title 5, chap. 5, $$ 173, 174. when it is observed that a similar distincTo the contrary, the Code of 1889 provided tion and consequence exists in the Code Nathat, in case of a divorce for adultery, the poleon. guilty spouse should forfeit or lose, not his 2. Owing to an apparent ambiguity in the or her interest in the community, but "all finding of fact concerning the liability of the that may have been given or promised him husband to the community for $22,000 it or her by the innocent one, or by any other becomes necessary, before reviewing the leperson, in consideration for the latter.” gal conclusion of the court below on that Code of 1889, art. 73, 13.

And a similar subject, to fix the exact meaning of the provision was incorporated in the Code of facts found upon which that legal conclu1902, as follows:

sion was based. As a preliminary to so do“The party against whom the judgment ing we reproduce in the margint the finding is rendered (of divorce) shall forfeit to the of fact on the subject, as well as the legal party obtaining the divorce all gifts which conclusion drawn by the court therefrom. the other party may have conferred upon

Whilst there are expressions in the findsuch party during the marriage, or when the ing referred to which, isolatedly considered, same was contracted, and the innocent par- might lead to the inference that it was the ty shall retain everything which has been intention of the court to find that the husacquired from the other.” Sec. 174.

band had not expended the money, but had Both these provisions were plainly intend- concealed it or yet had it in his possession, ed to depart from the rule of forfeiture pre

we think the context of the finding and the vailing in the more ancient Spanish law and result of the other findings establish that to incorporate the rule of limited forfeiture, the court intended to and did find that the as existing in the Louisiana (article 156)

+That said defendant Garrozi made sev. and Napoleon (article 299) Codes; a similar eral trips to Europe during the continuace provision to which has been enacted in the of his marital partnership, and spent large codes of some other countries, which have sums of money by reason thereof, which modeled their codes on the Code Napoleon. were, as near as can be determined from his 1 De Saint-Joseph, Concordance, pp. 24 et testimony, the following amounts:

In 1889

$10,000.00 seq. This conclusion is reinforced by the

In 1890 consideration that, at the time of the adop-In 1895

7,000.00

5.000.00 tion of the Spanish and Porto Rican Codes, In 1896-98

25,000.00 the provision of the Napoleon Code on that subject had been conclusively determined

Total

$47.000.00 not to operate a forfeiture of the communi

Said defendant claims in his testimony ty property. See authorities collected in that these trips to Europe and the expendinote to article 299 in the Fuzier-Herman rendered necessary by reason of his serious

ture of these large sums of money was edition of the Code Napoleon, Paris, 1896. and continued illness. But said testimony

The argument advanced in the brief of is not substantiated by that of any other

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