This is a suit for partition of improved real estate, consisting of a dwelling house on a lot 100 x 100 feet, situate in the Borough of Spotswood, Middlesex County, N.J., and arises out of the following circumstances:
Title to the property in question was conveyed to Joseph Somonek and Mary Somonek, his wife, by deed dated May 14, 1945 and recorded in the Middlesex County Clerk's Office May 16, 1945 in Book 1277 of Deeds at page 317.
June 1, 1949 a final decree of divorce was entered in the Circuit Court of the Eleventh Judicial Circuit of the State of Florida, in and for Dade County, in favor of the wife, Mary Somonek, and against her husband, Joseph Somonek. Thereafter on or about June 8, 1949 Mary Somonek contracted a marriage with Gabriel H. Eberle whose wife she now claims to be.
Plaintiff alleges that by reason of the marriage between Joseph and Mary Somonek having been dissolved by divorce, the estate by the entireties formerly existing between them with reference to the Spotswood property was converted into a tenancy in common.
Defendant Joseph Somonek, while admitting that he and Mary Somonek were husband and wife, that they held title to said property as tenants by the entireties, and that his wife, Mary Somonek, instituted suit for divorce against him in the State of Florida, which suit resulted in a final decree in favor of the wife, asserts nevertheless that the divorce suit in Florida was instituted in fraud of this court and in fraud of the courts of the State of Florida; that the Florida decree of divorce is invalid and void; that he was not served with process in the State of New Jersey, nor did he appear in the Florida suit; that because of said fraud the decree of the Florida court is not binding upon this court and is not entitled to full faith and credit under the Federal Constitution; that at a time when the plaintiff was his wife and while they had their matrimonial domicile in New Jersey, she was guilty of matrimonial offenses committed with the said Gabriel Eberle; that she and Eberle departed from the State of New Jersey and went to Florida for the express purpose of evading the jurisdiction of the courts of New Jersey; that the plaintiff is still his lawful wife; and that the alleged decree of divorce in Florida does not affect the right, title and interest of the plaintiff and of the defendant to the Spotswood property.
And by way of counterclaim, defendant repeats his allegations with respect to the fraudulent nature of the Florida divorce proceedings and demands judgment that the Florida decree of divorce be declared to be of no force and effect in the State of New Jersey and that the plaintiff be adjudged to still be the lawful wife of the defendant.
At the trial, there was introduced in evidence exemplified copy of the Florida divorce proceedings, including the complaint, order for service by publication, proof of publication of notice, decree pro confesso for failure of the defendant to appear, and final decree of divorce entered June 1, 1949. The complaint in the divorce suit was verified by plaintiff's affidavit made April 5, 1949, and the complaint was filed that day. It alleges, inter alia , that the plaintiff was at that
time and for more than 90 days previous had been an actual bona fide resident of Dade County in the State of Florida. The suit for divorce as set forth in the complaint was founded on the ground of extreme cruelty by the defendant towards the plaintiff. The final decree finds jurisdiction of the parties and the subject matter in the Florida court, grants to the plaintiff a decree of divorce a vinculo matrimonii , and awards permanent custody and control of the two minor children to the plaintiff, subject to right of visitation by the defendant at all reasonable times. On its face the divorce proceedings appear to be regular in all respects. The answer does not allege, nor did the defendant at the trial contend, that he had not received notice of the pendency of the suit for divorce in Florida.
At the trial, plaintiff offered in evidence exemplified copy of the Florida divorce proceedings, including the final judgment, invited attention to the admissions contained in the pleadings and pretrial order, and rested.
Defendant took the stand and testified, called five additional witnesses who gave testimony, and offered in evidence depositions taken in Florida of Gabriel H. Eberle, ...