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Untermann v. Untermann

Decided: May 13, 1955.

SALLY L. UNTERMANN, PLAINTIFF-APPELLANT,
v.
JOHN JOSEPH UNTERMANN AND SARAH CAYER KALTMAN, ALSO KNOWN AS SARAH CAYER UNTERMANN, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

Plaintiff sought a judgment declaring:

(1) that she is the sole and only legal wife of the defendant, John Joseph Untermann;

(2) that the alleged Mexican divorce obtained by Untermann in no way affects her marital status;

(3) that the subsequent purported marriage between Untermann and the defendant Sarah Cayer Kaltman (also known as Sarah Cayer Untermann) does not affect plaintiff's marital status; and

(4) that the defendant Kaltman is not the legal wife of Untermann in the State of New Jersey.

In answer to the complaint, Untermann asserted the validity of his divorce from plaintiff and charged affirmatively that a Nevada divorce decree obtained by plaintiff from her first husband was illegal, which rendered void his marriage to plaintiff.

The defendant Kaltman filed a similar answer and added a counterclaim for a declaratory judgment as to her status as wife of Untermann.

The trial court held: (1) that Untermann was estopped from attacking the validity of plaintiff's Nevada divorce from her first husband; (2) since plaintiff was seeking affirmative relief by way of a declaration of her status, she had the burden of proving her marriage to Untermann and since the proof showed her divorce decree had been obtained by means of a fraudulent residence, she was barred from the relief prayed for because of unclean hands; (3) that Untermann's divorce from plaintiff is void in New Jersey for lack of jurisdiction in the Mexican court, and that the defendant Kaltman was not entitled to the aid of the court by way of a declaration of her status. Plaintiff appeals from the adverse judgment; defendants have not done so.

The tangled skein of marriages and divorces to be discussed here reflects the supermarket type of divorce legislation which exists in some of our sister states and neighboring countries.

Plaintiff was married to Harold E. Cheney on October 16, 1916 in Syracuse, N.Y. Two children were born of the marriage. They moved to Newark, N.J., in 1918 and, except for the period ...


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