On appeal from the Appellate Division, Superior Court of New Jersey, whose opinion is reported in 28 N.J. Super. 446.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from that part of a judgment of the Appellate Division which affirmed a judgment of the Superior Court, Chancery Division, enjoining the defendant-appellant from proceeding with a divorce action instituted by him in the State of Florida. The appeal is here as a matter of right under R.R. 1:2-1 (b), Constitution (1947), Art. VI, § V, par. 1(b). No appeal has been taken from that part of the judgment of the Appellate Division which reversed a judgment for maintenance of the Superior Court, Chancery Division.
The parties were married in 1906 and lived together until August 1931, since which time they have lived apart from each other. During most of this period the appellant supported the respondent, but since 1950 the respondent has been supported by virtue of an agreement made between her four adult sons and the defendant-appellant for her benefit under which certain stock in a company controlled by the appellant was turned over to the sons with the understanding that they would supply the support for the mother set forth in detail in the agreement.
The fact is that there has not been a refusal of support, so there would seem to be no basis for a decree for maintenance, but that in itself would not justify the denial of injunctive relief under the law if the respondent was so entitled.
In 1951 the appellant went to visit some relatives who were ill in Florida and during such visit apparently decided to remain in Florida permanently. The uncontradicted proof is he severed his business connections in this State and that he established a permanent residence in Florida. In May 1952 he instituted a suit for divorce in the courts of that state on the ground of extreme cruelty. The respondent on receipt of the papers in the Florida proceeding took the matter up with her local counsel who arranged for representation in the State of Florida and through these attorneys of her own choosing she entered an appearance in the action.
In July 1952 the plaintiff-respondent instituted her action for maintenance and injunctive relief and obtained personal service on the defendant-appellant while he was temporarily visiting in this State. In this action the trial court made no finding as to domicile but permanently restrained the Florida matrimonial proceeding and awarded a decree for separate maintenance.
On the appeal it appears that there was no question in the minds of the judges comprising the Appellate Division, 28 N.J. Super. 446, but that the defendant-appellant's residence in Florida was a bona fide one. The majority in that court stated: "Here, the husband manifested an apparent intention to remain indefinitely, if not permanently, in St. Petersburg * * *. True, more abundant proof of animus manendi would not ordinarily be available." In his dissenting opinion Judge Francis stated: "We are in agreement that Stultz established a bona fide residence in Florida and thus became a citizen of that state."
We are in accord with this finding because the proofs with respect to the intention to establish a domicile in Florida are on the face of the record uncontradicted. There is no proof to suggest that the Florida domicile is feigned with the intent to impose upon the divorce jurisdiction of that state, and there is no basis whatsoever for finding that the jurisdiction of the Florida court is fraudulent as of now.
In Zieper v. Zieper, 14 N.J. 551 (1954), we held that the Full Faith and Credit Clause of the Federal Constitution,
Art. IV, Sec. I, requires extra-territorial recognition of a decree of divorce obtained in keeping with the requirements of procedural due process, by a spouse who had acquired a bona fide domicile in the state in which the divorce was granted, although the spouse against whom the decree was entered had remained in the state of the original matrimonial domicile and had neither appeared nor been served with process in the state in which the divorce proceeding was instituted, and although recognition of such a divorce offended the policy of the former state. We could not hold otherwise in view of the recent holdings of the United States Supreme Court in Williams v. State of North Carolina, 325 U.S. 226, ...