On appeal from the Superior Court, Chancery Division.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Oliphant, J. Heher, J., concurring in result.
This is an appeal from a judgment nisi entered in the Chancery Division setting aside and declaring null and void a decree of absolute divorce granted the appellant by the Eleventh Judicial Circuit Court of the State of Florida, dated January 28, 1948, and granting a divorce to the respondent on the ground of adultery but denying alimony to the respondent. The appellant appealed to the Appellate Division from the judgment nisi on the question of jurisdiction, on the merits and the allowance and amount of counsel fee. The respondent cross-appeals from the denial of alimony. These appeals were brought here on our own motion.
The parties were married on June 20, 1937, in East Orange, New Jersey, and lived in Verona as husband and wife, later moving to Montclair, New Jersey, until the appellant left for Florida to obtain a divorce under circumstances related hereafter.
The appellant has been engaged for the last 25 years in the painting and decorating business in the northern part of this State under the trade name of the Verona Decorating Company with offices in Verona and Newark. He is also the controlling stockholder in the P.C. Staedler, Inc., Maintenance, Inc., and 500 Bloomfield Avenue, Inc. Through these New Jersey corporations the appellant operates a substantial business in his line and employs a considerable staff of men, both in the field and in the office. The respondent was actively engaged with him in the business as secretary and bookkeeper in the Verona offices.
There was considerable bickering during their married life and at various times the appellant asked the respondent for a divorce but the respondent always refused, whereupon he finally threatened to go to another state and procure one. In 1946, over one year prior to the Florida decree here in question, the appellant communicated with Morris G. Warner concerning a divorce in Florida. Warner is a member of the bar of this State and of Florida and later represented the appellant in the Florida proceedings. The respondent in the meanwhile had consulted with present counsel and when the
appellant learned of this he threatened to leave the State, turn over his assets to a dummy corporation, get a divorce and leave her without anything. He said there was no need for two lawyers in the case, that his lawyer could take care of everything by an agreement.
Finally the appellant took the respondent to his lawyer Morris Rubin in Bloomfield and discussed with him their difficulties and affairs and Rubin drew an agreement which is the nub of this appeal. The agreement followed an oral discussion of the problems and a study of a preliminary draft thereof by both the parties. Rubin testified that he did not advise the wife as to her rights because she never asked him.
The written agreement was signed on October 17, 1947, and under its terms the appellant agreed to pay his wife $60 a week until the payments totaled $20,000. It further provided that, when and if their home on Park Street, Montclair, New Jersey, was sold, title to which was apparently in both names, $10,000 from the proceeds of the sale would be deposited in a trust fund to be paid to the wife in weekly payments of $60, except that she could draw therefrom $1,500 at any time. However, no weekly payments were to be made from this trust fund until the wife had been paid $10,000 in weekly payments of $60 as first mentioned above. In all the wife was to receive $20,000 to be secured by a non-interest bearing note signed by the appellant for $20,000. The wife also was to receive a 1946 De Soto car valued at $2,500.
On her part she agreed to withdraw from the business and to waive, release, and bar herself of all right of dower or other claim in all real property the appellant then owned or thereafter acquired, if the appellant did not breach the agreement.
She also further agreed to the following terms and conditions which are pertinent here:
"5. It is further agreed that party of the second part shall have the right to occupy that part of the house on Park Street, in the Town of Montclair, which she presently occupies, until such time as the said house is sold, or at such time as the party of the first part procures a final decree of divorce from the party of the second part, or sooner than either of the periods above set forth, if she so desires, but not later than the periods above set forth.
7. The party of the second part agrees promptly to execute any papers, and enter, or cause to be entered any appearance required in the divorce proceedings to be instituted by the party of the first part, without delay. Should the party of the second part oppose said divorce proceedings the said trust shall become inoperative, and the monies deposited thereunder shall be returned to the party of the first part.
11. * * * If the party of the first part shall hereafter obtain a decree of divorce against the party of the second part, nevertheless, this agreement shall continue in full force and effect.
12. It is further agreed that the party of the second part shall, at any time or times, make, execute and deliver any and all such further instruments as the party of the first part shall reasonably require for the purpose of giving full force to this agreement and to the terms and conditions thereof."
The appellant testified that he left for Florida a few days after the agreement was signed, but the correspondence he engaged in with his wife and his associates indicates that he arrived in Florida in the middle of November, 1947. By his own direct admission and his testimony as to the dates of the discussions which led to the consummation of the above agreement, the appellant certainly was not in Florida on or about September 18, 1947, as he testified in the Florida proceedings or as testified to here by his Florida attorney.
All during the time he was in Florida he constantly directed the business through instructions sent to the respondent up to December 31, 1947, when she by agreement withdrew from the business, and thereafter through the manager, Richard Coutant, who testified he consulted with the appellant in Florida by letter and telephone as to all business decisions and policies. The appellant maintained bank accounts in the Verona Trust Company, Federal Trust Company in Newark, and the Bank of Montclair. All of these accounts were never closed and are open and in use at the present time. The testimony clearly shows that during the period in question, October 17, ...