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Judkins v. Judkins

Decided: October 16, 1952.


Goldmann, J.s.c.


Plaintiff sues for divorce on the ground of adultery. The answer denies the charge and, by a separate counterclaim, defendant demands judgment declaring null and void: (1) the Arkansas divorce decree obtained by plaintiff on May 28, 1946 against her then husband, Richard Kain, and (2) the marriage between the parties solemnized July 14, 1946. Kain is still alive.

Plaintiff and Kain were married on April 22, 1944 and went to live in Baltimore. She returned to Trenton, N.J. when her husband, who was in the armed services, was transferred to Louisiana in January 1945. After serving overseas he returned to Trenton in March 1946, but plaintiff refused to live with him, stating that she was going to divorce him on the ground of desertion. There is no proof that Kain ever deserted her.

Plaintiff had been living in an apartment of her own in Trenton, but in February 1946 she moved in with her parents.

Defendant had been boarding with plaintiff's parents since the beginning of the year and was considered one of the family. He had his morning and evening meals with them and was often invited along when they went out for the evening. Family affairs were freely discussed in his presence, and foremost among the topics of discussion was the problem of plaintiff's marriage to Kain and its dissolution. The proofs are clear that defendant was present at these discussions and joined in some of them. He knew when plaintiff and her father went to see a Trenton attorney about arranging for an Arkansas divorce. He was present at the time Kain came to the house to accompany plaintiff's father to the attorney's office for the purpose of signing a waiver in connection with the contemplated proceedings. One of the questions discussed by the family in defendant's presence was how the expenses for the Arkansas trip and divorce were to be met, the final decision being that the father would get a finance company loan which plaintiff was to pay off.

Plaintiff finally obtained a leave of absence from her War Department position in Trenton and left for Arkansas with her father late in March 1946. She admits that her sole purpose in going was to obtain a divorce. The two arrived in West Memphis, Arkansas on March 26, 1946 and returned to Trenton in less than a week. Defendant was waiting for her at her parents' home, having taken the day off from work.

An exemplified copy of the Arkansas proceedings was introduced in evidence. The complaint was filed May 22, 1946 and alleges that the Kains separated at Trenton on March 19, 1945; that the parties had been separated for a period of more than one year next preceding the hearing, and that the desertion was willful and deliberate on the part of the defendant. In further states that plaintiff had been a resident of Arkansas for more than three months next preceding the hearing. The affidavit attached to the complaint indicates that it was executed May 22, 1946. However, the

plaintiff testified that she signed this affidavit a day or so after arriving in Arkansas -- i.e. , on March 27 or 28, 1946 -- at the direction of the attorney there.

The husband's entry of appearance and waiver of service filed in the Arkansas action was acknowledged at Trenton on March 15, 1946, more than a week before plaintiff entrained for Arkansas. (The date accords with the testimony about Kain having accompanied plaintiff's father on a visit to her Trenton attorney at that time.) By this instrument, defendant entered his general appearance "in the above-entitled cause for all purposes." There was, of course, no "cause" yet pending. He waived his right "to answer, demur or otherwise plead to the complaint of the plaintiff filed herein," agreeing "that said cause may be submitted to the court and disposed of by it upon the complaint of the plaintiff and such deposition as may be filed in support thereof."

The depositions of plaintiff, her father and her Arkansas landlady, were submitted in support of the complaint. The exemplified copy of the proceedings indicates they were taken on May 22, 1946 at the office of plaintiff's attorney. Neither plaintiff nor the father were in Arkansas on that date, having long since returned to Trenton. Plaintiff's deposition states that she and Kain separated at Trenton on March 19, 1945, the separation having been continuous since then; that the parties had been living at the home of plaintiff's parents and, defendant having said he "was very dissatisfied with married life in general," he packed and left; that the desertion was willful and deliberate on his part, and that plaintiff had lived in Arkansas since March 26, 1946. The landlady's deposition stated that plaintiff had lived in Arkansas since February 19, 1946, "a little more than three months now." The deposition of plaintiff's father gave the date of final separation as March 19, 1945, stating that defendant packed and left on that day. The father swore that his daughter had been living in Arkansas since March 26, 1946.

As already indicated, the depositions were allegedly sworn to in Arkansas on May 22, 1946. The decree of divorce is

dated May 28, 1946 and notes that plaintiff appeared by her attorney, defendant having filed his waiver of summons and entry of appearance, and that the matter was heard on petition and depositions.

The law of Arkansas in effect during 1946 was proved. Chapter 50, paragraph 4386, Civil Code, section 459, as amended by Act 71 of 1931, approved February 26, 1931; Pope's Digest of Statutes of Arkansas (1937), page 1271. It provided:

"The plaintiff, to obtain a divorce, must prove, but need not allege, in addition to a legal cause of divorce:

First: A residence in the State for three months next before the final judgment granting a divorce in the action and a residence for two months next before the commencement of the action.

Second: That the cause of divorce occurred or existed in this State, or if out of the State, that it was a legal cause of divorce in this State; the laws of this State to govern exclusively and independently of the laws of any other State to the cause of divorce.

Third: That the cause of divorce occurred or existed within five years next before the commencement of the suit."

It will thus be seen that in contravention of the statute plaintiff began her action less than two months after she came to Arkansas and obtained her divorce decree in much less than three months. She arrived and departed within a week. The divorce proceedings were based on depositions that were falsely post-dated, and on an entry of appearance and waiver of service executed prior to plaintiff's departure for Arkansas and more than two months before the complaint, which is referred to therein, was filed.

The entire proceedings were a fraud upon the courts of Arkansas and of this State. The divorce complaint alleged willful and deliberate desertion of one year's duration by the husband -- not a valid ground for divorce under the laws of New Jersey. The matrimonial domicile was this State. Neither party was domiciled in Arkansas. Plaintiff's residence there was temporary; she did not even meet the very liberal statutory residence requirements of that jurisdiction.

The state of the law in Arkansas in 1946 was such that

mere residence might be considered as bestowing jurisdiction on the courts there for divorce purposes. Squire v. Squire , 186 Ark. 511, 54 S.W. 2 d 281 (Sup. Ct. 1932). The holding of the Squire case was considered a controversial one (Porter v. Porter , 209 Ark. 371, 195 S.W. 2 d 53 (Sup. Ct. 1945)), and was inferentially disregarded in subsequent cases. In 1947 Arkansas repudiated the view that mere residence for the statutory period was sufficient for divorce jurisdiction. Cassen v. Cassen , 211 Ark. 582, 201 S.W. 2 d 585 (Sup. Ct. 1947), expressly overruled Squire v. Squire insofar as it held that a person who came into Arkansas for the purpose of obtaining a divorce and did not have an animus manendi , might be said to be a bona fide resident of that State.

It may be noted that in Hollander v. Hollander , 137 N.J. Eq. 70, decided by the former Court of Errors and Appeals in 1945, the court dealt with Arkansas residence in terms of the principle adhered to in our State requiring domicile in the foreign jurisdiction. In that case defendant resisted complainant's efforts to obtain support by setting up an Arkansas divorce. The court said (at page 77):

"The matrimonial domicile was not in Arkansas. Neither party was domiciled in that state. Appellant's residence there was purely temporary. He had no intention of establishing his domicile there. The animus manendi was lacking; indeed, the animus revertendi is evident. He returned to his home in South River shortly after the Arkansas decree was entered, and has had his domicile there ever since. His residence in Arkansas was but an ostensible and feigned compliance with that state's statutory prerequisite to the exercise of its divorce jurisdiction, designed to give the color of justification to the invocation of such jurisdiction; and, the domicile there being sham and fraudulent, there was on well-settled principles no jurisdiction of the subject-matter of the divorce action, and the decree granted therein has no force or effect whatever in this state. The purported residence was plainly a fraud upon the law of Arkansas; and, there being for that reason a complete absence of jurisdiction, the full faith and credit clause of the Federal Constitution (article IV, section I) is not applicable. R.S. 2:50-35."

So here. Plaintiff never intended to establish a domicile in Arkansas. Her "residence" there was, in the language of

the Hollander case, nothing more than "an ostensible and feigned compliance with that state's statutory prerequisites to the exercise of its divorce jurisdiction, designed to give the color of justification to the invocation of such jurisdiction." Plaintiff's Arkansas domicile was sham and fraudulent.

Defendant's attack upon the validity of the Arkansas decree is immediately met by plaintiff's contention that he, being a stranger to the record of the Arkansas divorce proceedings and not having a property right affected thereby, is not legally entitled to question its validity. Before dealing with that contention, it is appropriate to consider the preliminary question of whether the decree may be questioned in the courts of New Jersey, absent the complicating factor of defendant's being a stranger to the Arkansas proceedings.

Directly involved is N.J.S. 2 A:34-22 (formerly R.S. 2:50-35, as amended), whereby the Legislature defined the public policy of this State toward divorces obtained in a foreign jurisdiction:

"Full faith and credit shall be given in all courts of this state to a judgment of nullity of marriage or divorce by a court of competent jurisdiction in another state of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections 2 A:34-9 to 2 A:34-12 of this title Nothing herein contained shall be construed to limit the power of any court to give such effect to a judgment of nullity or divorce by a court of a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this State shall go into another state or country, in order to obtain a judgment of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a judgment so obtained shall be of no force or effect in this state."

The present situation falls squarely within the terms of the proviso of the quoted statute. However, the declared policy of New Jersey must give way to the provisions of the Federal Constitution (Art. IV, sec. 1), that "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State," if the decree of

the sister state is of such quality as to entitle it to full faith and credit. If the court of the sister state had no jurisdiction, the decree is void and will not be recognized. Giresi v. Giresi , 137 N.J. Eq. 336 (E. & A. 1945).

The United States Supreme Court cases which govern the extent to which a divorce decree must be given effect in other states under the full faith and credit clause, and which are of immediate moment, are the two Williams v. North Carolina cases, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 143 A.L.R. 1273 (1942) and 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366 (1945); Sherrer v. Sherrer , 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429, 1 A.L.R. 2 d 1355 (1948); Coe v. Coe , 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, 1 A.L.R. 2 d 1376 (1948), and Davis v. Davis , 305 U.S. 32, 59 S. Ct. 3, 83 L. Ed. 26, 118 A.L.R. 1518 (1938).

While a divorce decree based upon a finding that one of the spouses was domiciled in the state granting the divorce must be given full faith and credit where such finding is not questioned in the sister state in which an issue as to its recognition arises (first Williams case), the mere fact that the court granting the divorce found that it had power to award the decree cannot foreclose re-examination by another state (second Williams case). Its courts are entitled to investigate the question whether the plaintiff had a bona fide domicile in the state in which the divorce was granted. Accord, Rice v. Rice , 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957 (1949). The foreign divorce decree may be impeached by showing that neither of the parties had acquired a bona fide domicile in the granting state, contrary to the findings of the courts of that state (second Williams case).

Regardless of the nature of the rights affected by a divorce, or of the local policy of a state in which the full faith and credit effect of a divorce decree of a sister state comes in issue, a decree based upon a finding of domicile and entered in a proceeding in which the defendant appeared and participated, is entitled to full faith and credit. It cannot

be impeached by the court of another state on the ground that the court had no jurisdiction for lack of one of the parties, unless it is so impeachable in the state in which the decree was granted. Sherrer v. Sherrer and Coe v. Coe , above. In each of these cases, the defendant spouse appeared personally and was represented by counsel; the Sherrer answer denied and the Coe answer admitted plaintiff's domicile, but the question of domicile was not actually tried in either instance.

The Davis case held, a fortiori , that a divorce decree based upon a finding of domicile made after actual contest and litigation of that issue, is entitled to full faith and credit and may not be ...

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