Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.
This is an appeal from a judgment of conviction for bigamy entered in the Bergen County Court of Special Sessions.
Prior to August, 1946, the defendant Haim Najjar lived with his wife and three children in the State of New York. On August 6, 1946, he obtained a decree in Mexico, purporting to divorce him from his wife. He was never in Mexico but had arranged by mail for an appearance by an attorney in Mexico. His wife was never in Mexico nor did she authorize or enter any appearance. The decree contains no recital or adjudication on the subject of domicil; on the contrary, it simply states that the husband submitted to the court's jurisdiction and was represented by an attorney, that the grounds for his action were incompatibility of temperament and cruel treatment, that his wife was ordered served by publication because her whereabouts were unknown and that she was granted "three days to answer the complaint".
On September 4, 1946, the defendant married Mina Mintzeles at Hackensack, Bergen County, New Jersey. As a result of this marriage he was indicted for bigamy and upon his request and execution of waiver he was tried before the trial judge without a jury. At the trial the defendant testified that his attorney had advised him that although his home State of New York would not recognize his Mexican decree, New Jersey would and that although he still had doubts on the subject these were dispelled when the clerk in Hackensack issued a marriage license with knowledge of his Mexican decree. The trial judge found him guilty and the defendant appeals from the resulting judgment of conviction urging (1) that since New Jersey is not the domiciliary State of the parties it may not inquire into the validity of the Mexican decree; (2) that the New Jersey bigamy statute should be construed as inapplicable where the marriage is between non-residents and follows a decree of any court having general divorce jurisdiction; and (3) that the defendant should have been acquitted on the ground that he had no criminal intent.
Domicil, as the jurisdictional basis for divorce, is universally recognized in all of our States and throughout the English-speaking world. Without it no State may properly decree a divorce; with it any State, whether it be the original domiciliary State or a newly acquired domiciliary State, such as Florida, Nevada, or elsewhere, may decree a divorce which will be entitled to recognition everywhere under the full faith and credit clause. See Williams v. North Carolina (I) , 317 U.S. 287 (1942). However, the jurisdictional finding of domicil by the newly acquired domiciliary State may still be questioned (Williams v. North Carolina (II) , 325 U.S. 226 (1945)), at least where it was not made in a proceeding in which both parties appeared and participated, (Sherrer v. Sherrer , 334 U.S. 343 (1948)).
The Mexican decree, which admittedly is not entitled to the protection afforded to judgments of courts of our sister States by the full faith and credit clause, is not based upon a jurisdictional finding of domicil. Although there is no proof before us, the parties have assumed that it is valid within the of Mexico , 2 Law and Contemporary Problems, p. 310 (1935). Mexico , 2 Law and Contemporary Problems, p. 310 (1935). Be that as it may, it has no extraterritorial effect and should receive no recognition here. Reik v. Reik , 109 N.J. Eq. 615 (Ch. 1932) aff'd 112 N.J. Eq. 234 (E. & A. 1933); Newton v. Newton , 13 N.J. Misc. 613 (Ch. 1935); Greenspan v. Greenspan , 19 N.J. Misc. 153 (Ch. 1941). Indeed, such a divorce has recently been described as a nullity "from which no rights of any kind may spring". See Caldwell v. Caldwell , 298 N.Y. 146, 81 N.E. 2 d 60 (1948) and comment in 62 Harv. L. Rev. 131, 132 (1948) that the "case indicates that New York will treat mail-order divorces as complete nullities, although other divorces void for want of jurisdiction are often given some force". But compare Weise v. Hughes , 1 N.J. Super. 104, 62 A. 2 d 695 (App. Div. 1948). Whether one favors strict or liberal divorces it seems clear that the moral standards of our community require unequivocal rejection of the suggestion that mail order divorces may have some validity within our borders.
Appellant's first contention is that even though New York, as his domiciliary State, would disregard his Mexican decree, New Jersey, as a non-domiciliary State, has no sufficient interest to question it, citing Floyd v. Floyd , 95 N.J. Eq. 661 (E. & A. 1924) and Greensaft v. Greensaft , 120 N.J. Eq. 208 (E. & A. 1936). In Sherman v. Federal Security Agency , 166 F.2d 451 (C.C.A. 3 d 1948) the court, after pointing out that the cited cases were direct attacks on foreign divorces by non-residents where New Jersey had no interest in the marital status of the parties, soundly concluded that they have no application to a proceeding properly within New Jersey's jurisdiction where the attack on the foreign divorce arises in the course thereof. Cf. Fried v. Fried , 99 N.J. Eq. 106 (Ch. 1926); Payne v. Payne , 2 N.J. Super. 270, 72 N.J.L.J. 1 (Ch. Div. 1948). See Smith v. Smith , 72 Ohio App. 203, 50 N.E. 2 d 889 (1943). Accepting appellant's contention that New Jersey had no interest in his marital status at the time he obtained his Mexican decree, it nevertheless has, at all times, a vital and legitimate public interest in the enforcement of its laws relating to bigamy. In furtherance of that interest appellant's prosecution resulted, and in the course thereof, the trial judge properly was called upon to pass on the issue of whether appellant had a divorce decree from a "court having cognizance thereof" within the express statutory exclusion. We are convinced that the trial judge's action in holding that the Mexican decree was utterly void and did not satisfy the statute was entirely correct.
Appellant next urges that the bigamy statute (R.S. 2:113-1) be narrowly construed and that it be deemed inapplicable to non-residents who marry here. We find no reason of policy and nothing in the statutory language which lends support. Appellant then suggests that the statute be construed to compel the court to recognize a divorce decree of lesser quality than one generally entitled to full ...