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Zieper v. Zieper

Decided: May 11, 1953.

EMANUEL ZIEPER, PLAINTIFF-RESPONDENT,
v.
REBECCA ZIEPER, DEFENDANT-APPELLANT



Eastwood, Bigelow, and Jayne. The opinion of the court was delivered by Jayne, J.A.D. Bigelow, J.A.D. (dissenting).

Jayne

Emanuel Zieper, a young soldier who had perhaps just attained his majority, was returning by train from his home in Paterson, New Jersey, to Fort Jackson, South Carolina. Rebecca Tovsky of New York City, and of like age, was quite adventitiously a passenger on the same train. Doubtless the coordination of their penetrating glances inspired their mutual introductions, for they had not previously met. This casual coincidence initiated a correspondence course of courtship. At their next meeting on May 1, 1942 they were united in marriage.

A summarized account of their subsequent migrations and periods of cohabitation will be somewhat explanatory of the controversial issues which this appeal brings before us.

Immediately after the marriage they cohabited for a few weeks near the camp in South Carolina and then the wife returned to the home of her parents in New York City where, except for a very short absence, she remained and he visited her when on furlough, until he was discharged from military service in December 1945. It would not be a material departure from the facts to state that they have never maintained a home of their own. It is not evident, however, that he is not industrious. Until their ultimate separation they have lived together either in the home of her parents in New York City or in Los Angeles, California, or in that of his sister in Paterson, New Jersey. A child was born of the marriage on August 29, 1946.

In September 1946 her parents moved to Los Angeles. She desired to visit them. In October 1946 he provided her and the child with transportation to Los Angeles, and a few weeks later he joined her there. They remained together with her parents in Los Angeles until the month of January 1947, at which time he alone returned to New Jersey where he has ever since resided.

Subsequent events to which reference may now be chronologically made are significant characteristics of the present litigation.

On October 30, 1947 the wife, who continued to remain with her parents in Los Angeles, instituted an action in the Superior Court of California in and for the County of Los Angeles against her husband for divorce. Service of process in that action was made upon the non-resident husband by publication and mail. The husband did not enter any appearance in that action but instead on November 25, 1947 instituted a suit in the Court of Chancery of New Jersey to enjoin his wife from prosecuting her divorce action in the State of California.

Upon presentation of his complaint to the advisory master on November 25, 1947, an order was made restraining ad interim the further prosecution of the action by the wife and directing her to show cause before the court in Paterson, New Jersey, on January 9, 1948 why the restraint should not continue pendente lite. In pursuance of the terms of the order relative to substituted service copies of the complaint, the attached affidavits, and of the order to show cause containing the ad interim restraint were dispatched by registered mail to the defendant Rebecca Zieper, to her California attorney, and to the Clerk of the Superior Court of California. The copies were received by the clerk of the court and by the defendant's attorney on December 1, 1947, and personally by the defendant on December 2, 1947.

It is significantly observed that the complaint in the Chancery suit contained the following allegations:

"6. By virtue of the foregoing, complainant alleges that his and defendants domicile, ever since their marriage, and up to the present time, has been in the City of Paterson and State of New Jersey and that this state, ever since said marriage and up to the present time, has been their matrimonial domicile; that defendant has deserted complainant and remained away from the matrimonial domicile, to wit, the City of Paterson and State of New Jersey, and said desertion of complainant, by defendant has been wilful, continued and obstinate.

9. In and by the allegations of said California complaint, the defendant herein set up -- 'II. That for more than one (1) year prior to the commencement of this action plaintiff has been, and now is, a resident of the State of California, and that for more than three (3) months preceding the commencement of the within action plaintiff has been, and now is, a resident of the County of Los Angeles.' Complainant alleges that the said allegations are false in these respects, that said defendant is not and never has been a bona fide resident of the State of California, but is still domiciled, and has been domiciled ever since her said marriage, in the City of Paterson, State of New Jersey aforesaid, by reason of the matters set forth in paragraphs 1, 4, 5, 6 and 8 above, and that said pretended residence claimed by the said defendant in California is in fraud of the said California Court, of the State of New Jersey and of complainant, in that defendant herein is not a bona fide resident of California, is not domiciled in California, and California is not the matrimonial domicile of the complainant and defendant, nor has complainant ever consented that defendant acquire a separate home, nor has complainant ever been guilty of any misconduct toward her so as to cease having the right to object to her acquiring a separate home, nor have complainant and defendant ever been domiciled together as man and wife in the State of California. Complainant alleges that said pretended residence in California is alleged by the said defendant for the purpose of inducing the said California Court to grant a decree of divorce from the bond of said marriage to said defendant herein, who is a resident of this State, for an alleged cause which occurred while the parties were bona fide residents of and domiciled in this state, contrary to the provisions of the statute in such case made and provided, and that, if the said defendant herein shall obtain such a decree from the said California Court, the same will be of no force and effect in this state."

An order continuing the restraint was made on January 27, 1948, a certified copy of which was also received by the defendant and her attorney on or about February 17, 1948. A decree pro confesso was entered on April 26, 1948.

However, the wife continued the prosecution of her action in California in defiance of the restraint, and an interlocutory judgment of divorce was entered therein in her favor on May 28, 1948. On June 25, 1949, "after taking proofs in open court," a final decree was entered in the husband's suit in the Court of Chancery of New Jersey which recites that:

"It further appearing that said interlocutory judgment of divorce was procured by fraud and imposition ...


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