On appeal from the Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Case, J.
[5 NJ Page 95] These cases come up on appeals and cross-appeals. The parties were husband and wife. The wife obtained a divorce in the State of Florida and then sued thereon in New Jersey for alimony. The alimony suit was dismissed by the Superior Court of New Jersey, Chancery Division. On appeal the Appellate Division reversed and remanded. The husband appeals generally from that judgment of reversal and the wife
appeals from so much of it as failed to fix alimony, suit money and counsel fee and as denied counsel fee on the appeal. The husband, after the wife obtained her Florida decree, filed a petition for divorce in Chancery of New Jersey and was awarded a judgment nisi, which was appealed by the wife to the Appellate Division and there reversed. The husband appeals generally from that judgment also, and the wife appeals from so much of it as denies her a counsel fee. A more particular statement of the proceedings follows.
The Florida decree was strictly a divorce a vinculo matrimonii, without prejudice to the assertion of pecuniary or property rights in a court having jurisdiction. On June 18, 1948, four days after that decree was rendered, Mrs. Ward filed her bill for alimony in Chancery of New Jersey.
Meanwhile, Dr. Ward had instituted an injunction proceeding in the New Jersey Court of Chancery. On or about April 17, 1948, he had received, by mail, a notice to appear and an order of publication in his wife's Florida divorce proceedings. On April 27, 1948, he filed his bill of complaint praying that his wife and her attorneys be restrained from proceeding further with the Florida suit and from entering or taking any order or decree therein except a decree dismissing the suit. An order to show cause, with stay, issued and was served upon Mrs. Ward in the manner therein directed. Full and timely notice is admitted. On the return, May 10, 1948, Chancery issued an injunctive order in accordance with the prayer of the bill. That order, also, was served in accordance with its terms, including service on Mrs. Ward and her attorney in Florida. Mrs. Ward was brought into the proceeding by publication and substituted service but she did not answer or otherwise appear. She totally disregarded the injunction and prosecuted her Florida proceeding to a decree.
On September 14, 1948, the husband, with court leave, filed what the parties term an amendment by way of supplement to the bill in the injunction suit, charging that his wife had obtained the Florida decree contrary to, and in definance of, the Chancery restraint; and praying that the Florida decree
be determined to have no force or effect in this State. Mrs. Ward and her Florida attorney were given notice, in compliance with the order and the practice, by registered mail, duly received, of the amendment to the bill and were accorded time within which to answer. She filed no answer and made no appearance at any time in that suit. The matter was set for final hearing on December 15, 1948, at which time it was adjudged that the Florida decree was null and void and of no effect in this State. The judgment remains of record and has not been directly attacked.
To go back to the bill in Chancery for alimony: -- On being served as a party defendant Dr. Ward answered, setting up the several matters hereinafter discussed. By later supplement to the answer, he pleaded the decree in the injunction proceedings declaring the Florida decree void.
On September 14, 1948, and before the alimony suit came on for hearing, Dr. Ward filed his petition for divorce on the ground of desertion in Chancery of New Jersey, pleaded the Florida decree and the injunction order and alleged that the decree was void because neither party was domiciled in the State of Florida and Dr. Ward had not appeared in the proceeding, and prayed that the Florida decree be adjudged void and that the marriage be dissolved in the New Jersey proceeding. Mrs. Ward answered that the injunctive order was not duly made or entered, that personal jurisdiction over her had not been obtained, that to give effect thereto would be a violation of the Fourteenth Amendment of the Constitution of the United States, that her residence was truly in the State of Florida, that the courts of that state had rendered unto her a valid decree of absolute divorce before the commencement of the New Jersey divorce suit, that the Florida decree was, under Article IV, Section 1 of the Constitution of the United States, entitled to due faith and credit and that consequently Dr. Ward was not, at the commencement of his New Jersey suit, the husband of the pleader.
The alimony suit and the New Jersey divorce suit were tried together in the Superior Court, Chancery Division, which
had then, by reason of the changes in our court system, taken over the litigation. That court sustained Dr. Ward's contentions, upheld the injunction suit and the decree on the amended bill, struck down the Florida decree, denied alimony and granted Dr. Ward a judgment nisi in his New Jersey divorce action. Judgment final went against Mrs. Ward in the alimony suit on April 22, 1949, and the judgment nisi was entered in Dr. Ward's divorce action on April 25, 1949. On Mrs. Ward's appeals to the Appellate Division the judgment in Dr. Ward's suit for divorce was reversed, without costs, and the judgment in the alimony suit was reversed and the cause remanded for further action respecting amount of alimony, if any, suit money and counsel fee, but without counsel fee on the appeal.
Both parties are natives of New Jersey. They were married here September 6, 1941, had their matrimonial domicile at Morristown, New Jersey, where both had previously resided, and cohabited there until August 21, 1946. There were no children born of the marriage.
The substance of Mrs. Ward's complaints about her husband was that while he was kind, considerate and generous, his professional labors frequently did not leave him the time and energy to share with her the sort of social life she wished to lead and the extent of his manifestation of sexual impulse was not satisfying to her.
Dr. Ward's practice was in Morristown and Dover, New Jersey. He was one of four doctors practicing as a group. They were in general practice with one specializing in pediatrics and Dr. Ward in surgery and obstetrics. Following the wedding professional engagements kept Dr. Ward and his bride in Morristown until October 6, 1941, when the two left for the west on their wedding trip, returning soon after November 1st. On December 7th this country became involved in the war. First one and then another and finally the third member of the group of doctors went into the service, leaving Dr. Ward to care for the practice, greatly magnified by the industrialization of the war plants and by the absence of other
doctors of the community in war work. Mrs. Ward understood thoroughly the pressure under which he worked. She testified: --
"His offices were open started (starting ?) at five o'clock in the afternoon and the telephone rang constantly. I preferred to take them rather than have the maid do that. I felt I could handle them, possibly, more intelligently because of the terrific pressure under which he was working, many patients who had colds, mostly colds, on many occasions I said to them, 'I know if Dr. Ward were -- he would recommend sulfa thiazol and juice of fruits,' and when Dr. Ward came in the evening I would tell him of the telephone calls. He frequently didn't come home from his work until nine or ten o'clock; occasionally, eleven and twelve o'clock. I waited dinner for Dr. Ward regardless of how late he came in and I got up every morning to have breakfast with him about six-thirty. He operated at the hospital at eight o'clock. We had little enough time together and I made it a point to get up and have breakfast and to wait dinner for him and to relieve him as much as I possibly could. As a matter of fact, I made a call for him one day. He didn't have the time to check on a patient and the patient didn't have a telephone. He asked me to go over and find out how the patient was doing which I was more than glad to do. I asked what I felt were questions Dr. Ward would have asked and related the answers back to him and he was satisfied everything was satisfactory. Dr. Ward had heavy calls and he didn't give up. He kept going. I admired him for it. I drove him in the middle of the night to hospitals and waited for him to deliver babies and perform operations."
And again, her testimony: --
"Q. During those five years, both on vacations and when you were home, the doctor was infrequent in his sexual relations and you resented that? A. I resented that and I resented the fact because of that there was no possibility of a family. I was very much interested in having children. I would have been interested in a greater social life. I was aware of the fact he was physically and mentally exhausted when he came home at night. I was sympathetic and co-operative and understanding as far as I could."
The strange thing is that the wife, manifesting a degree of sympathy and helpfulness, did not experience greater tolerance for the impact of the strain upon her husband's domestic life and did not find compensating joy in the fact that her husband, although impaired in his usefulness to her ...