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Shepherd v. Ward

Decided: January 10, 1950.

MARILYN SHEPHERD, PLAINTIFF-APPELLANT,
v.
ALBERT J. WARD, DEFENDANT-RESPONDENT. ALBERT J. WARD, PLAINTIFF-RESPONDENT, V. MARILYN S. WARD, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division.

McGeehan, Colie and Eastwood. The opinion of the court was delivered by Colie, J.A.D.

Colie

The first appeal is from a judgment dismissing Marilyn Shepherd's action for alimony. The second is an appeal from a judgment of divorce awarded Albert J. Ward. The legal questions presented are best examined against the factual and chronological background.

Marilyn Shepherd and Albert J. Ward were married on September 6, 1941, and thereafter resided in Morristown where he was an active practicing physician. There are no children. For reasons presently immaterial, they separated in August, 1946. Mrs. Ward thereafter lived with her parents in Maplewood, New Jersey, until October 22, 1947, when she went to Florida. Dr. Ward continued to live in his home in Morristown. On April 14, 1948, Mrs. Ward commenced an action for divorce in Florida on the ground of extreme cruelty. Hereinafter her suit for divorce will be described as the Florida action. Dr. Ward was not served personally in the Florida action but by publication and substituted service. He did not then or subsequently appear or take any step therein. Instead he countered in May, 1948, with a suit in the former Court of Chancery whereby he sought and obtained against

his wife a preliminary injunction from further prosecuting the Florida action.

The Florida action resulted in a decree on June 14, 1948, divorcing the parties. Four days after the date of entry of the Florida decree, Mrs. Ward, now Marilyn Shepherd, commenced a suit for alimony against Dr. Ward in the former Court of Chancery. Dr. Ward answered the complaint in the alimony suit, setting up (1) that Mrs. Ward was incapable of acquiring a Florida domicile without his consent or without proof that he had committed a matrimonial offense under New Jersey law and (2) that the Florida divorce was obtained in disregard of the preliminary injunction.

The pleadings and other papers in the injunction suit are not before us. In lieu thereof the appendix contains a stipulation with reference thereto. That stipulation reads: "Notice of this suit was given by registered mail to her and to her Florida attorney as provided by orders made in that cause, and like notice was given both of all subsequent proceedings therein. She was brought in by publication and substituted service of process. A stay and (subsequently) an injunction were issued in the injunction suit and served on her in Florida." The papers in the injunction suit started in May, 1948, were received by Mrs. Ward. The stipulation then reads: "On September 14, 1948, an amendment by way of supplement to the bill in the injunction suit was filed, setting up the fact that Mrs. Ward had, contrary to the command of the injunction, proceeded to take a decree for divorce in the Florida court, and praying that said decree be adjudged to be of no force and effect in this state." With reference to service of the supplemental bill, the stipulation reads: "Mrs. Ward and her Florida attorney were again given notice by registered mail of the amendment, and accorded time within which to answer. All the papers required to be mailed to her and her attorney in Florida were duly mailed in accordance with the orders made in that cause and the practice of the former Court of Chancery." Mrs. Ward testified that it was not until January, 1949, that she first learned that the validity of the Florida divorce was being attacked in the injunction

proceeding; that the first knowledge she had to that effect came from her parents who went to Florida to visit her and from a copy of a newspaper article forwarded to her by her counsel. There is, however, in the record in the injunction suit an affidavit that copies of the supplemental bill and of the order permitting the filing of same were mailed to Howard C. Fisher, Esquire, a Florida attorney, and to Marilyn Shepherd. The affidavit recites that they were mailed on September 15, 1948, and the record contains a return receipt signed by Howard C. Fisher and another return receipt signed by Mrs. Marilyn Shepherd.

No answer was filed to the first or to the supplemental bill in the injunction suit, and it culminated on December 15, 1948, in an ex parte judgment holding the Florida decree to be void because of the absence of a bona fide domicile in Florida by Mrs. Ward. After the entry of the judgment declaring the Florida decree void, Dr. Ward filed an amended answer in the alimony action against him, setting up as a bar the judgment of December 15, 1948, declaring the Florida decree void. On September 14, 1948, the same date when the supplemental bill was filed in the injunction suit, Dr. Ward commenced an action for divorce grounded upon his wife's desertion. She filed an answer therein setting up (1) that there was no personal service upon her in Dr. Ward's divorce action and therefore the court had no jurisdiction over her, and (2) that under Article IV, Section I of the Federal Constitution her Florida decree was entitled to full faith and credit in New Jersey and that as a consequence thereof Dr. Ward and she were not husband and wife, ergo , no marriage existed for the New Jersey court to dissolve.

In the original injunction suit, Mrs. Ward was brought in by publication and substituted service of process and under Kempson v. Kempson , 61 N.J. Eq. 303 (Ch. 1901); modified, 63 Id. 783 (E. & A. 1902), the restraint against the further prosecution of the Florida action was valid. From the stipulation it is clear that service in the original injunction suit was made in ...


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