For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J. Heher, J., concurring in result.
[11 NJ Page 226] This matrimonial case was certified by this court on defendant's petition, 10 N.J. 315, to review a judgment of the Superior Court, Appellate Division, 20 N.J. Super. 229,
which affirmed all but that portion of a summary judgment entered in the Law Division determining the amount of defendant's indebtedness for arrearages of alimony awarded to the plaintiff under a Nevada final decree of divorce a vinculo.
Plaintiff and defendant were married December 23, 1939 and separated July 1, 1946, since which time they have lived apart. On February 4, 1948 they executed a separation agreement whereunder the defendant agreed to pay the plaintiff certain weekly and monthly sums of money. This agreement, purporting to settle their property rights and alimony payments, was entered into on the advice and counsel of their respective attorneys in this State. Within a week thereafter plaintiff went to Nevada and on March 26, 1948 obtained there a final decree of divorce in which was incorporated the agreement of February 4, payments pursuant thereto being adjudged to constitute alimony. The defendant entered a general appearance in the Nevada proceedings.
After the plaintiff was awarded her decree she immediately returned to her home in New York. Defendant on May 6, 1948 remarried and has since lived with his second wife. Defendant made the alimony payments provided for in the Nevada decree until February 1950, but thereafter fell into arrears and as a result, on June 22, 1951, the instant action at law was instituted to recover the arrearage due under the Nevada decree. Bullock v. Bullock, 57 N.J.L. 508 (Sup. Ct. 1895).
The defendant in his answer set up six separate defenses, all of which attacked the validity of the Nevada decree. The plaintiff replied setting up an estoppel by reason of the defendant's remarriage and asserting that the defense constituted a collateral attack on a judgment of a sister state entitled to full faith and credit under the federal Constitution, and further that the defendant was in laches. Plaintiff then moved to strike the defenses and affidavits were filed by both parties. The trial court granted the motion to strike
and entered summary judgment in favor of the plaintiff. On appeal the Appellate Division affirmed the lower court on the question of defendant's liability but reversed on the question of the quantum of damages and the case was remanded solely for a determination of the amount of defendant's indebtedness.
The contention here is that the Nevada decree is void, but this we find is without merit under the facts exhibited, and that the decree is entitled to full faith and credit under Art. 4, sec. 1 of the Federal Constitution. The United States Supreme Court has held that full faith and credit should be accorded a decree of a sister sovereign state if a defendant spouse appeared in the divorce proceedings and contested the issues, Sherrer v. Sherrer, 334 U.S. 343, 68 Sup. Ct. 1087, 92 L. Ed. 1429 (1948); or appeared and admitted the domicile, Coe v. Coe, 334 U.S. 378, 68 Sup. Ct. 1094, 92 L. Ed. 1451 (1948); or was personally served with process in the state which awarded the decree, Johnson v. Muelberger, 340 U.S. 581, 71 Sup. Ct. 474, 95 L. Ed. 552 (1951); and if the spouse either admits or contests the issue of plaintiff's domicile or is personally served in the divorce state he is barred from attacking the decree collaterally in a sister state, Cook v. Cook, 342 U.S. 126, 72 Sup. Ct. 157, 96 L. Ed. (1951).
In the instant case the defendant entered a general appearance and actually appeared through counsel in the Nevada proceedings. He had an opportunity to litigate the issues, including jurisdiction, though he did not avail himself of that opportunity. Cf. Isserman v. Isserman, 11 N.J. 106 (1952).
But the defendant says that under the decision of this court in Staedler v. Staedler, 6 N.J. 380 (1951), he is not precluded from asserting in this action the invalidity of the Nevada decree. In that case, under facts widely different from those existing here, the defendant wife was not represented by counsel of her own ...