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Brown v. Brown

Decided: October 27, 1953.

STELLA D. BROWN, PLAINTIFF-RESPONDENT.
v.
EDWARD I. BROWN, DEFENDANT-APPELLANT



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Defendant appeals from an order of the Chancery Division adjudging him in contempt for disobeying a temporary injunction by securing a Nevada divorce.

The parties were married in 1916 and lived together in New Jersey until 1930. In that year plaintiff brought an action for separate maintenance and obtained a final decree which directed the defendant to pay $50 per week support and maintenance for her and the three children of the marriage. The decree was modified in 1939 to provide for weekly payments of $35. Defendant left New Jersey the latter part of August 1948, went to Reno, Nevada, and soon after his arrival there instituted suit for divorce. The wife was personally served in New Jersey with the summons and complaint in the Nevada suit on October 28, 1948. Within the 30-day period allowed her to answer, and on November 13, 1948, she filed a verified complaint in the Chancery Division seeking an injunction against further prosecution of the Nevada suit. On the same day the Chancery Division entered an order continuing an ad interim restraint and ordering defendant-husband to show cause on November 26, 1948 why an injunction should not issue. On the return day, no answer or affidavits having been filed or appearance entered by him, the court issued a temporary injunction restraining him and his solicitors from proceeding further in the Nevada action. Nonetheless defendant, with knowledge of the New Jersey restraint, proceeded in the Nevada courts and obtained a divorce decree on December 6, 1948.

While defendant was in New Jersey on a visit in 1951 he was served with plaintiff's notice of motion to hold him in contempt for violating the temporary injunction of November 26, 1948.

Defendant filed an answer in the matrimonial injunction action setting forth, among other things, that he had changed his domicile and residence from New Jersey to Nevada prior to the institution of that action; that he continued to have his domicile and residence in Nevada until after the completion of the divorce proceedings, and that the Nevada decree was entitled to full faith and credit, was presumed to be valid and was a defense to the contempt proceedings.

Pending the hearing in the contempt proceedings, defendant was served with a petition and notice of motion to fix the amount of alleged arrearages due plaintiff under her 1930 separate maintenance decree, as modified. He was also served with a notice of motion for an order for a writ of ne exeat and for counsel fees and suit monies. Defendant countered with a notice of motion for an order dismissing the matrimonial injunction action on the ground that it had been abandoned by plaintiff through her failure diligently to prosecute the same, and for an order directing that proceedings on plaintiff's petition to fix the amount of alleged arrearages be stayed until determination of the matters then before the court.

We limit ourselves to the contempt proceedings brought in the matrimonial injunction action of 1948. After taking the testimony of defendant and his witnesses (plaintiff offered no proofs), the trial court adjudged defendant guilty of contempt. Brown v. Brown , 19 N.J. Super. 432 (Ch. Div. 1952). On appeal, this court, in Brown v. Brown , 24 N.J. Super. 198 (App. Div. 1953), held that the injunction was invalid unless the husband was domiciled in New Jersey when he brought the Nevada suit. In remanding the cause the court said:

"Here the trial court made no finding as to the domicile of the husband or as to the validity of the Nevada divorce decree. Without

such a finding, there can be no valid order adjudging the husband in contempt for violation of such a restraining order." (at page 203)

There were further proceedings following this reversal, but no additional testimony was taken, both counsel stating they had no more evidence to offer. Plaintiff moved for findings of fact and also for an order the same as the one reversed, stating that the application would be based upon the "papers, proceedings of record, and testimony" in the matrimonial action as embodied in the appendix on the appeal just decided. The trial court thereupon made findings of fact and decided that defendant was a domiciliary of New Jersey when he attempted to obtain his Nevada divorce, and that his decree was fraudulently obtained. The court then entered the order under appeal adjudging defendant guilty of contempt in willfully violating the restraining order of November 26, 1948, by deliberately taking a final decree of divorce in the above action on December 6, 1948 after being apprised of the restraint and while it was still in full force and effect. The order further directed defendant "to proceed with reasonable diligence to present the truth" to the Nevada court and "in good faith to urge" that its divorce decree be set aside and declared null and void. The contempt order was stayed by the trial court pending appeal.

In passing upon the validity of the more recent contempt order we have before us the decision of this court on the earlier appeal that no adjudication of contempt could be made without a finding as to defendant's domicile or as to the validity of the Nevada decree, because the initial power to restrain the Nevada proceedings itself depended on the existence of a New Jersey domicile in the husband. Domicile is the determinant. It cannot be that the Nevada decree is valid, and at the same time that defendant is in contempt. The two are inconsistent and would require diametrically opposed findings on the question of domicile.

The Nevada decree presumptively is entitled to full faith and credit under U.S. Const., Art. IV , ยง 1.

Williams v. North Carolina (first case), 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942). The legislative policy expressed in N.J.S. 2 A:34-22 (formerly N.J.S.A. 2:50-35) must give way to the requirement that under the full faith and credit clause recognition must be given to the decree of another state even though the ground of divorce was not one recognized here. Peff v. Peff , 2 N.J. 513, 520 (1949); Hubschman ...


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