On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Burling and Ackerson. For dismissal -- Justice Wachenfeld. The opinion of the court was delivered by Case, J.
The issue is whether the plaintiff-appellant is entitled to a judgment declaratory of her status as the lawful wife of the defendant, Charles Augustus Lawler, notwithstanding a Nevada decree of divorce obtained by him and his subsequent marriage, followed by some years of cohabitation, with the intervenor, Alice O'Dell Lawler.
The Advisory Master before whom trial was had concluded that the fraud, which was assumed, of her husband in obtaining the divorce and perpetrating the subsequent marriage was known to or must have been known to the plaintiff by reason of the circumstances, that "by her delay she acquiesced and permitted her husband to live with Alice Lawler for over 11 years," and that "she failed to act diligently and promptly upon her husband's return to New Jersey;" and thereupon dismissed the bill. The Appellate Division of the Superior Court, on appeal, considered that the decision in the trial court went, as indeed it had gone, on the theory of laches, that adequate support for that holding was to be found in the Court of Errors and Appeals decisions in Cope v. Cope, 123 N.J. Eq. 190 (1938), and Sleeper v. Sleeper, 129 N.J. Eq. 94 (1941), and in the Chancery decision in Hollingshead v. Hollingshead, 91 N.J. Eq. 261 (1920), and that, therefore, the decree in the Chancery Division should be affirmed.
The bill was filed as against Charles Augustus Lawler only. Forthwith Alice C. Lawler (nee Alice O'Dell) was given permission by the court to intervene as a party defendant "only to the extent of setting up the defense of laches," and she filed an answer as follows:
"The complainant, Sophia Lawler, herein is guilty of laches in the institution of this suit, in that she has from the date of the marriage of this intervenor with the defendant, Charles Augustus Lawler, to wit, on April 6th, 1936, stood by without having asserted in any wise the alleged invalidity of the marriage between this intervenor and the said defendant, with full knowledge of such marriage, and the fact that this intervenor and defendant, Charles Augustus Lawler, her husband, have lived together and cohabitated as husband and wife for said period of time, and in addition the said complainant Sophia Lawler acquiesced in said status and during said period of
time permitted the status of the defendant, Charles Augustus Lawler and of this intervenor to change so that equitable rights have since arisen in favor of this intervenor, and the said complainant, Sophia Lawler, by virtue of the premises is and should be estopped from asserting the alleged invalidity of the marriage of this intervenor, with the defendant, Charles Augustus Lawler."
Plaintiff replied that Alice Lawler came into court with unclean hands and should not be heard to urge the defense of laches in view of her acts in and about the obtaining of the divorce and of the intent and purpose which inspired those acts. Alice Lawler did not take the witness stand and produced no witnesses.
The proofs are clear that the marriage of plaintiff to Lawler was lawful; that the marriage domicile was in the State of New Jersey; that the domicile of both plaintiff and defendant Lawler has constantly been in this State; that there were two children of the marriage, now adults, a son and daughter by name James Lawler and Cecelia Sonntag, both of whom were witnesses for the plaintiff; that early in January, 1936, Charles Augustus Lawler left his wife and went in company with Alice O'Dell to the State of Nevada for the purpose of obtaining a divorce and perpetrating a fraud upon the courts of Nevada by representing that he had established a domicile in that state whereas he did not go there for the purpose of establishing a domicile, and had not established and did not establish a domicile, that he went there exclusively for the purpose of obtaining a divorce; that intervenor lived and cohabited with him while he was obtaining the divorce and went through a marriage ceremony in the State of Nevada within an hour or two after the decree was granted; that plaintiff did not know, in advance, of her husband's trip to Nevada or of the purpose of the trip, and that she did not appear or take any part in the Nevada action; that during the course of the Nevada proceedings she learned either by the service of papers or otherwise of the institution of the suit and herself started a suit in the Court of Chancery of the State of New Jersey, alleging that her husband had begun the divorce proceeding and by fraud and the suppression of the truth was attempting to induce the Nevada court to
adjudicate therein; that plaintiff prayed therein that her husband be perpetually restrained from proceeding with the divorce action and from setting up any decree that he might thereafter obtain in the suit to defeat or affect the plaintiff's marital rights; that plaintiff actually obtained an order calling upon the defendant Lawler to show cause why he should not be restrained and enjoined according to the prayer of the bill and carrying an ad interim stay directing Lawler to refrain from all further proceedings in the Nevada courts to obtain a divorce and caused the same to be served by mail; that Lawler had knowledge of the existence and nature of the New Jersey suit before he obtained his Nevada decree; that after the decree had been granted in Nevada and Lawler had returned to New Jersey the action in Chancery was dismissed without prejudice at the instance of complainant therein.
In 1946 Alice Lawler sued the defendant, Charles Augustus Lawler, in our Court of Chancery for separate maintenance on the ground of desertion and cruelty, and on August 8, 1947, was awarded a decree directing the defendant therein to pay her the sum of $12.50 each week. There are no children of Alice and Charles Lawler.
As to the Nevada decree. The domicile of both Sophia Lawler and Charles Augustus Lawler was in New Jersey. There never has been any doubt as to Sophia Lawler's domicile from the time the couple were married at Paterson in 1906 and established their domicile there. And there has been none with respect to Mr. Lawler's domicile except such as was raised by his own testimony in the divorce hearing when he said he had gone to Nevada with the intention of making his home there for an indefinite period. All tangible facts were against the truth of that statement and Lawler's present testimony admits of no doubt that he did not at any time intend to make his home there for an indefinite time, that he had no animus manendi and that he went there for no purpose except to procure, as quickly as the processes of the courts permitted, a decree of divorce, marry the intervenor, and return to his home in New Jersey; a triple purpose which was speedily enacted into fact. The plan was in his
mind from the time he left New Jersey and was never altered. Some of the testimony by Lawler in ...