Clapp, Francis and Schettino. The opinion of the court was delivered by Francis, J.A.D.
The consolidated appeals in this cause were argued on November 3, 1953. At that time the conclusion was reached to await the decision of the Florida Supreme Court on a pending petition for rehearing in the divorce action between the parties. Accordingly the following unreported per curiam opinion was filed:
"These consolidated appeals bring up for review two orders entered in the Chancery Division respectively (1) dismissing defendant's petition to vacate all proceedings in the separate maintenance action brought by plaintiff (Docket M-702-51), and (2) denying defendant's motion to dismiss the complaint in plaintiff's matrimonial injunction action (Docket M-3903-51).
The parties were married in 1922, came to New Jersey to live in 1925, and have resided in Short Hills, Essex County, since 1940. On December 29, 1950 they, accompanied by plaintiff's personal maid, went to Florida for a vacation. The Short Hills house was left intact and ready for occupancy upon their return. All of the clothing and personal belongings of the parties remained there. Defendant's assets, consisting largely of negotiable securities, remained in his safety deposit box in the Millburn Bank, and other assets of value were left in New Jersey.
On or about February 25, 1951 plaintiff and the maid returned to Short Hills. Plaintiff alleges that this was done at defendant's request, that he made all necessary arrangements for the trip, including
a chauffeur and expense money, and stated he would rejoin plaintiff in the near future either at the Short Hills home or at their summer home in Union Springs, New York. He did not do so.
Plaintiff has continued to reside in Short Hills. Defendant remained in Florida and failed to support his wife. He returned to New Jersey briefly on two occasions; on the first trip he removed all his securities from his safety deposit box and on the second assaulted plaintiff and the maid. Defendant was subsequently indicted by the Essex County grand jury for criminal desertion of plaintiff and for assault. These indictments are still outstanding.
Plaintiff, claiming to be destitute, instituted a separate maintenance action and sequestered defendant's assets in New Jersey under N.J.S. 2 A:34-24 to 26. Jurisdiction was obtained by publication and registered mail service of the complaint, annexed affidavits and order of publication on defendant in Florida. With full knowledge of the proceedings, he failed to appear or interpose a defense in the action.
Plaintiff then petitioned for alimony pendente lite. The petition and order to show cause were served on defendant by registered mail. On January 10, 1952 the Chancery Division entered an order directing the sequestrator to pay plaintiff $100 a week alimony and her attorney a $3,000 counsel fee, pendente lite. Soon after an order was entered appointing the sequestrator receiver of defendant's assets.
Final judgment in the separate maintenance action was entered February 19, 1952, directing the sequestrator and receiver to pay plaintiff out of monies then or in the future in his hands the sum of $300 a week from October 5, 1951, less payments theretofore made, and a counsel fee to her attorney of $7,500 in addition to the fee theretofore allowed. The attorney was later allowed an additional counsel fee of $500 out of the sequestered funds. (A report subsequently filed by the receiver shows that he realized $41,015.05 from certain assets; it was from these monies that he paid the support, counsel fees and other expenses.)
Within a month after this final judgment, and on March 21, 1952, defendant instituted suit for divorce against plaintiff in Florida, charging her with desertion on February 25, 1951. The complaint is in the usual form and alleges defendant's residence in Florida for more than 90 days immediately preceding the filing of the complaint. On April 9 plaintiff filed her complaint to enjoin defendant from proceeding with his Florida action or with any action relating to the marriage, except in the State of New Jersey. An order to show cause with a restraint against prosecution of the Florida suit was made on the same day, returnable April 18. Copies of the order and of the complaint were served upon defendant in Florida by registered mail. Defendant failing to appear upon the return day, the Chancery Division entered an order continuing the restraint until further order of the court, and this order was also served on defendant by registered mail, a copy being mailed to the judge of the court in which the Florida divorce was pending.
Plaintiff appeared by independent counsel and filed an answer in the Florida action raising the issues of domicile and desertion. She personally went to Florida and challenged the jurisdiction of the court there, presenting a copy of the separate maintenance judgment entered against defendant. The matter was referred to a special master to take testimony. Extensive depositions were also taken. The special master found in plaintiff's favor; he concluded that she had not deserted defendant and recommended a dismissal of his suit. Exceptions were taken and on November 5, 1952 the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, entered an order reciting:
'1. That the plaintiff, George C. Field, Jr., has clearly established that he is a bona fide resident of the State of Florida and has resided in the State of Florida continuously for more than ninety days preceding the filing of his bill of complaint; and that the defendant appeared voluntarily and, therefore, the court has jurisdiction of the parties.
2. The exceptions to the master's report in which he held that the residence had been established, should be overruled.
7. That the date of the desertion of the plaintiff by the defendant is clearly shown to have occurred on October 5, 1951, when she instituted an action in the Superior Court of New Jersey, Chancery Division, Essex County, No. M-707-51, at which time she clearly stated that her residence was New Jersey and not Florida where the plaintiff had established his residence.'
The order then went on to provide:
Ordered, ADJUDGED and DECREED
(a) That the plaintiff's bill of complaint be and it is hereby dismissed without prejudice to his right to institute such further action as he deems necessary.
(e) That the plaintiff was a resident of the State of Florida at the date of filing of the complaint in this case and the court has jurisdiction of the parties.
(f) That the defendant deserted the plaintiff and that such desertion was willful and obstinate but it does not appear by the preponderance of the evidence that the said desertion was continuous for a period of one year prior to the filing of the bill of complaint and, therefore, the plaintiff's prayer for divorce is hereby denied. That the prayer of the plaintiff for alimony to the defendant and property disposition is hereby denied.'
On January 6, 1953 defendant filed his petition in the separate maintenance action praying that all proceedings be vacated by reason of fraud practiced by plaintiff upon the court and upon defendant, that plaintiff be required to account for all monies received under orders entered therein. and for other relief. An order to show cause containing restraints was entered the same day, plaintiff
filed answering affidavits, and on May 25, 1953 the Chancery Division judge entered an order vacating the restraints and denying defendant's petition. That order is now before this court for review.
On the strength of the Florida order defendant, appearing specially and solely for the purpose of contesting the jurisdiction of the Chancery Division, moved to dismiss the complaint in the matrimonial injunction action for lack of jurisdiction over his person. Affidavits in support and in opposition to the motion were filed, and on May 25, 1953 a second order, also here on appeal, denied the motion to dismiss.
Plaintiff appealed from the order entered in the Circuit Court in Florida. On July 31, 1953 the Florida Supreme Court filed its opinion which, after referring to the special master's recommendation that the husband's complaint in divorce be dismissed because he had not established statutory desertion, stated:
'When the matter reached the chancellor on exceptions to the master's report he decreed that the bill be "dismissed" and that prayer for divorce be denied for the lack of proof of one of the elements of the charge of desertion. We do not find sufficient disparity between the recommendation and the decree to warrant an exploration of the law on the points attempted to be raised. Obviously the appellant won the suit when the bill was dismissed regardless of the fact that the master thought no element of desertion had been established, the chancellor thought one had not been proved.'
Defendant petitioned the Florida Supreme Court for a rehearing and clarification of this paragraph, claiming that: (1) in the light of Stanton v. Stanton, Fla. 1952, 60 So. 2 d 273, the findings of the chancellor and his decree to the effect that Mrs. Field was guilty of constructive desertion would constitute sufficient disparity between the master's recommendations and the decree to warrant an exploration of the law on the points attempted to be raised; (2) the statements contained in the quoted paragraph are likely to confuse and mislead the Circuit Court as to the law of the case when Mr. Field files a new suit for divorce upon the expiration of the 12-month period from the date of the desertion established by the findings and decree of the chancellor; (3) when such a new suit for divorce is filed on the ground of desertion, the chancellor's findings and decree will constitute an estoppel by judgment; and (4) there should appear in said paragraph an unequivocal statement that the statutory 12-month period had not elapsed between the time of the beginning of Mrs. Field's desertion and the filing of her husband's bill of complaint, and therefore it was proper for the chancellor to dismiss the complaint.
Defendant urges on this appeal that the Florida court had determined that the marital domicile was in Florida and that plaintiff deserted her husband on October 5, 1951; that the Florida order is binding upon the parties and entitled to full faith and credit; that the complaint in the injunction action should therefore have been dismissed; that plaintiff had practiced ...