On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J. Heher, J., concurring in result.
[18 NJ Page 5] This is an appeal from a judgment of the Appellate Division, 32 N.J. Super. 333 (1954), which affirmed a judgment of the Chancery Division, Superior Court, 28 N.J. Super. 290 (1953), on the ground that a judgment of the New York Supreme Court granting
the plaintiff-respondent an absolute divorce on the ground of adultery and setting aside a decree of divorce in favor of the appellant of the Chancery Court of the State of Arkansas was res adjudicata of the issues raised below and further ordering the appellant to pay the respondent such arrearages of alimony under the New York judgment as would be found due on remand of the cause to the Chancery Division. The appeal is here as of right. R.R. 1:2-1(a).
While it is true, as the Appellate Division indicated, that a party has no legal status to attack the validity of a divorce decree of a sister state in a direct proceeding instituted for that specific purpose when neither party was a resident of this State at the time the decree of divorce was rendered, there can be no debatable question of the right of the plaintiff-respondent to enforce a judgment of a foreign state or the corollary right of the defendant-appellant to challenge the validity of such judgment upon the ground of fraud or lack of jurisdiction of the foreign tribunal which rendered the judgment. Floyd v. Floyd, 95 N.J. Eq. 661, 665 (E. & A. 1924). Such a judgment is always open to a collateral attack, either by defense or otherwise, and our courts may, subject to the requirements of the Full Faith and Credit Clause of the United States Constitution, examine the record and proofs to ascertain whether the judgment is invalid on either of these grounds. Morrissey v. Morrissey, 1 N.J. 448, 452 (1949).
The Full Faith and Credit Clause merely inhibits such inquiry when the defendant (1) appeared in such foreign proceeding and contested the issues; (2) or appeared and admitted the domicile; (3) or was personally served in such state so that it clearly appears from the record that the jurisdictional requirements applicable to both the subject matter and the person were present when the judgment was entered. Robison v. Robison, 9 N.J. 288, 291 (1952); Woodhouse v. Woodhouse, 11 N.J. 225, 228 (1953); Woodhouse v. Woodhouse, 17 N.J. 409 (1955).
However, where the jurisdiction of the foreign tribunal is predicated upon a fiction or alleged fact of domicile of the plaintiff, and substituted service, in lieu of personal service,
is used in an attempt to secure jurisdiction of a nonresident defendant, a state not a party to exertion of such judicial authority but affected by it has a right, when asserting its own unquestioned authority over its domiciliaries, to ascertain the truth of the existence of the crucial fact of domicile upon which the foreign judgment or decree is based. The finding of the fact of domicile by any state does not foreclose all the other states in the protection of the rights of the domiciliaries in their relations to their social institutions. Williams v. North Carolina (2 nd case), 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945).
The cause of action asserted here by the plaintiff-respondent is predicated on the judgment of divorce a vinculo of the Supreme Court of New York which refused to give full faith and credit to the Arkansas decree. The defendant-appellant by way of defense attacks this judgment and claims (1) that the Arkansas decree is entitled to full faith and credit and its defense of res adjudicata should have been upheld by the New York court; (2) that the New York judgment is void for lack of due process since he was not served personally in that state but in Louisiana; (3) that the Arkansas decree was a complete bar to the New York judgment.
Both parties are now domiciliaries of this State and both rely on decrees or judgments of foreign states, so that the jurisdiction has been assumed by our courts is pursuant to N.J.S. 2 A:34-23 and possibly under N.J.S. 9:2-2 if the minor son of the marriage is not emancipated. In each of the foreign states a form of substituted service was directed to the defendants, neither of whom appeared; thus we are not foreclosed from examining the fact of the domicile of the plaintiff relied on by those courts for jurisdiction. Williams v. North Carolina, supra.
The first question to be determined is the validity of the Arkansas decree which appellant asserts is entitled to full faith and credit. The burden of establishing the fact of domicile is upon the party who relies on it. Domicile is factual and each case must be evaluated and determined by its own facts and circumstances.
The proofs before this court are more complete since the appellant testified here. They clearly and definitely indicate that the appellant did not establish a domicile in Arkansas sufficient to invest the courts there with jurisdiction for purpose of divorce. The proofs out of the mouth of the appellant are sheer legal whimsy and come close to being unbelievable. He admitted living in his trailer in Araby, La. He then testified he drove a car and trailer over to Hansburg, Ark. and parked the trailer in a parking lot; that on many other days he commuted to his work in Louisiana, a trip that took five or six hours in either direction; that he left the trailer in a parking lot for several weeks while on an assignment in California. An attempt was made through the cross-examination of his son to elucidate some detail of corroboration but this failed. Domiciles and trailers are pretty close to being the opposite ends of the tether. Gypsies from time immemorial have been considered nomads without a domicile or country, but while the appellant here is not a gypsy, his domicile in Arkansas was a mere sham and we concur in the finding of the New York Supreme Court that the Arkansas decree was a nullity.
That brings us to the second jurisdictional question arising out of the finding of the New York court that the appellant was a domiciliary of that state when its judgment was entered. Since the respondent was a domiciliary of that state, that court had jurisdiction to grant a divorce a vinculo, if the Arkansas decree was a nullity, as that court and our courts have so found.
The appellant challenges the jurisdiction of the New York court to include in and enter a judgment in personam for alimony for his wife and support for his son on the ground that he was not served with process in the State of New York. Service of the summons and complaint in the New York action was admittedly made upon the appellant personally in New Orleans, La.
This service was held by the New York court to give in personam jurisdiction of the appellant by virtue of the provisions of the New York ...