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Payne v. Payne

Decided: December 23, 1948.

ELIZABETH COOGAN PAYNE, PLAINTIFF,
v.
DAVID VINCENT PAYNE, DEFENDANT



Schettino, J.s.c.

Schettino

[2 NJSuper Page 272] Plaintiff seeks separate maintenance. Defendant contends that his obligation to support plaintiff was dissolved by a Nevada decree of divorce, obtained by

him in uncontested proceedings upon service made outside the State of Nevada. He contends also that plaintiff is guilty of laches.

The parties were married in 1920. Two children were born of the marriage. Their support is not here involved. The parties lived together in New York City until January, 1934, when defendant abandoned his family and moved to New Jersey. Defendant contributed nothing to plaintiff's support for at least the past eight years. Off and on during these years plaintiff was on relief.

It need not be considered whether laches may constitute a defense in proceedings of this kind. It is sufficient to state that there is no evidence to support the assertion. Defendant so successfully concealed his precise whereabouts that plaintiff was able to catch up with him on but two occasions since his abandonment of her and the two children in 1934. She first located him in New Jersey in 1939, whereupon he moved. She next located him in the latter part of 1947, again in New Jersey. Shortly after the service of process in this cause, defendant departed for Phoenix, Arizona, where he now claims to be domiciled. Certainly, laches could not be found in these circumstances.

The issues which remain are (1) whether this court has jurisdiction to determine the effectiveness here of the Nevada decree, and (2) whether on the evidence the decree is entitled to recognition in these proceedings.

Defendant asserts that neither party was domiciled in New Jersey at the time of the Nevada proceedings and from that factual premise contends that this court cannot consider a challenge to the Nevada decree.

Plaintiff was never here domiciled. It is clear that from January, 1934, the time of the abandonment, until January, 1939, defendant was domiciled in New Jersey. He claims that he then acquired a domicil in Illinois. I am not persuaded that he did.

His testimony indicates that when he left New Jersey in January, 1939, for Chicago, he had the provisional intention of residing there permanently only if a certain business opportunity

proved to be what he hoped it would be. He lived at a hotel. In a few months he was convinced that the business opportunity was not satisfactory. In May, 1939, he came to New York City to attend to matters pertaining to an estate of a relative. In June, 1939, he returned to Chicago where he remained for a few days. He thereafter visited Salt Lake City for a short time and thence journeyed to Nevada where he arrived early in July, 1939. Six weeks later he instituted divorce proceedings. He obtained a decree on October 14, 1939. He then returned to New Jersey and eight days after the decree married again in this state. Defendant concedes that from the time of his return he was domiciled in our state until his recent removal to Arizona.

But if he did acquire a domicil in Illinois in 1939, that circumstance would be of no moment here. If we were to accept defendant's contention that only the state in which one of the parties was domiciled at the time of the foreign decree may refuse recognition to it in a proceeding of that kind, it would follow that a husband could effectively prevent a judicial determination of his marital obligation to furnish support by the simple expedient of obtaining a divorce elsewhere than in the state of original domicil on a fictitious claim of domicil and thereafter remaining outside its borders. A proposition so unjust will not be accepted in the absence of some overwhelming consideration. None is suggested and none occurs to me.

Defendant asserts that Floyd v. Floyd , 95 N.J. Eq. 661 (E. & A. 1924) and Greensaft v. Greensaft , 120 N.J. Eq. 208 (E. & A. 1936) support his position. I do not agree. In both cases the plaintiff was the husband and the sole object of the action, as found by the court, was to obtain a declaration of the invalidity of a foreign decree. In both cases the court found that neither party was here domiciled either at the time of the foreign action or at the time of the New Jersey suit. It was held that in those circumstances our courts could not review the validity of the foreign decree in a proceeding instituted for that special ...


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