Simicich v. Simicich

Admittedly the plaintiff husband is an alien who illegally entered this country and who is subject to deportation. The defendant wife resides in Italy. The husband predicates his prayer for a divorce on the allegation that his wife was extremely cruel to him while they lived together in Italy. No treaty accords him the right to institute and prosecute the suit.

It is my opinion, and I hold, that the plaintiff, in the absence of any applicable and governing treaty provision, cannot assert in this court, as a matter of right, his alleged cause of action, which (if it exists) accrued in a foreign country. The plaintiff’s suit, if maintainable at all, is maintainable only on the principle of comity and the question of whether or not he should be privileged to prosecute the suit is one which addresses itself to the court’s discretion. See 2 Am. Jur. 494 et seq.

My view is that the circumstances of the case — the wife’s denial of the husband’s charges; her financial straits; her inability to come to this country to defend against the husband’s charges; and the husband’s status — are such that he should not be permitted to maintain the suit.

For the reason stated the suit is dismissed.