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Chirelstein v. Chirelstein

Decided: May 16, 1950.

CECILE CHIRELSTEIN, PLAINTIFF,
v.
NATHAN CHIRELSTEIN, DEFENDANT, AND HELEN CHIRELSTEIN, INDIVIDUALLY, AND HARRY CHIRELSTEIN AND DIANE CHIRELSTEIN, INFANTS, BY THEIR GUARDIAN AD LITEM HELEN CHIRELSTEIN, INTERVENORS



Schettino, J.s.c.

Schettino

Plaintiff and defendant went through a ceremony of marriage in the State of New York on January 9, 1934. Prior thereto plaintiff had been married to James G. Rogers, who in 1924 obtained a final decree of divorce from her in New York on the ground of her adultery.

Immediately following the marriage ceremony, plaintiff and defendant came to New Jersey where they lived as husband and wife for a period of disputed duration.

On March 22, 1937, after a substantial period of separation, plaintiff obtained a final decree of divorce in the State of Florida. Defendant appeared therein and filed an answer. The decree is wholly silent on the subject of alimony. However, on March 18, 1937, the parties had entered into a written agreement at Miami, Florida, whereby, in contemplation of

the divorce, defendant transferred to plaintiff assets worth $16,250, plus the sum of $1,000 in cash, which plaintiff agreed to accept "in full payment of any and all claims of whatsoever nature that Cecile Chirelstein has had in the past, now has, or may have in the future for maintenance, support alimony and all other claims that have arisen or that may arise by reason of the marriage relationship heretofore and now existing between said parties, and that no other claims will be made by the said Cecile Chirelstein upon the said Nathan Chirelstein by reason of such marriage relationship." No children were born of their marriage.

On May 13, 1937, Chirelstein married again. His second wife and two children by their marriage have intervened in the present cause.

Rogers is still alive.

On September 23, 1949, plaintiff instituted this action against Chirelstein for alimony, alleging that their marriage had been terminated by the Florida decree.

That complaint is virtually identical with a bill of complaint filed by her under the name of Cecile Rogers against Chirelstein in the Court of Chancery on May 15, 1939. In that proceeding, on defendant's motion to strike "on the ground that the matters and things set forth in the bill of complaint do not show any ground for equitable relief," the bill was dismissed by a "final decree" dated July 11, 1939, which provided that the dismissal was "with prejudice." No appeal was taken.

On September 25, 1940, plaintiff under the name of Cecile Chirelstein filed a petition for divorce in the Court of Chancery. No reference was made therein to the Florida decree. An application for alimony pendente lite was denied on November 7, 1940. Advisory Master Herr filed a memorandum in which he grounded the denial upon the statement that, despite charges made by plaintiff in an affidavit, the Florida decree is not void and that until that decree was voided, "she is not the wife of the defendant, and is not entitled to maintenance or suit moneys from him." An answer was filed. No

further proceedings were had until the action was dismissed after the institution of the present proceedings, upon a recital that plaintiff elected to proceed in the present suit.

The complaint in the present suit was amended. As amended, the complaint proceeds upon two alternative bases. In the first count, plaintiff seeks alimony on the hypothesis that her marriage to defendant was terminated by the Florida decree. The remaining counts alternatively allege that if the Florida decree is void she is entitled to a relief on the basis of a subsisting marriage. The second count seeks a divorce from bed and board while the third count seeks a divorce from the bonds of matrimony on the grounds of adultery with the intervenor-wife. The intervenor-wife counterclaims against plaintiff seeking a decree that intervenor's marriage to Chirelstein is valid.

Out of this marital confusion arise many questions:

1. Should plaintiff be required to elect to proceed on the hypothesis that the Florida decree terminated the alleged marriage or the hypothesis that it was inefficacious?

2. Was the marriage between plaintiff and defendant in New York valid under the law of that state in view of the circumstance that under the New York statute remarriage by a defendant divorced for adultery is prohibited except under conditions not here met?

3. If the New York marriage was void, did a common law marriage arise in New Jersey?

4. Is the Florida decree entitled to full faith and credit under the facts ...


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