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Untermann v. Untermann

Decided: October 24, 1955.

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



On appeal from the Superior Court, Appellate Division.

For modification -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. Opposed -- Justice Heher. The opinion of the court was delivered by Oliphant, J. Heher, J. (dissenting in part).

Oliphant

This is an appeal from a judgment of the Appellate Division, 35 N.J. Super. 367, which affirmed a judgment of the Superior Court, Chancery Division, dismissing the complaint of the appellant in which she sought a declaratory judgment with respect to her marital status and her present relationship with the respondent, Untermann.

An appeal was taken in this case pursuant to R.R. 1:2-1(a) and also an application was made for certification pursuant to R.R. 1:10-2(d) which we have granted.

The complaint was filed under the Declaratory Judgment Act, N.J.S. 2 A:16-50 et seq., which confers upon our courts of record, within their respective jurisdictions, power to declare rights, status and other legal relations, although no further relief is or could be claimed. McCrory Stores Corporation v. S.M. Braunstein, Inc., 102 N.J.L. 590, 592 (E. & A. 1926). The complaint was properly filed in the Superior Court, Chancery Division, which has jurisdiction of the subject matter of the suit. Lawler v. Lawler, 2 N.J. 527 (1949).

The complaint states the appellant married the respondent on April 15, 1929 without disclosing where this marriage occurred or a prior divorce decree obtained by her on the same day in Reno, Nevada. It then alleges the respondent Untermann divorced her in Mexico on September 28, 1953,

that this divorce is void, and then, apparently referring only to this latter divorce, alleges "there might be a serious legal doubt as to the legal status of her marital rights insofar as the defendant, John Joseph Untermann, is concerned." The complaint demands a declaratory judgment: (a) that shall fix and determine the marital status of the plaintiff; (b) that the alleged divorce obtained by the defendant John Joseph Untermann on September 28, 1953 in the Republic of Mexico in no way affects the marital status of the plaintiff; (c) that the purported marriage between John Joseph Untermann and Sarah Cayer Kaltman on October 25, 1953 in the State of Connecticut does not legally affect the marital status of the plaintiff; (d) that the plaintiff is the sole and only wife of the defendant John Joseph Untermann; (e) that the defendant Sarah Cayer Kaltman, also known as Sarah Cayer Untermann, is not, so far as the rights of the plaintiff are concerned, the legal wife of John Joseph Untermann, in the State of New Jersey.

At the trial the following facts, which in most instances should be public records, were developed.

On October 16, 1916 appellant was married to one Harold Edward Cheney in Syracuse, N.Y. Two children were born of the marriage and the family came to Newark in 1918, and except for the period of time spent in Nevada to obtain her divorce from Cheney she has lived here ever since. Between 1923 and 1928 she instituted four separate actions in the Court of Chancery. Docket 54/598 was a proceeding of custody and support. This matter was completely litigated and an award of custody was made to the husband, Cheney. Thereafter she instituted actions for divorce on the grounds of extreme cruelty on three different occasions; Docket 60/575, in which no process was issued; Docket 66/241, which was litigated and the question of custody was adjudged to be res adjudicata and the proceeding dismissed; and Docket 66/710, which was dismissed on her motion.

Apparently some time prior to April 15, 1929 she went to Reno, Nevada, leaving her husband and two children, then 9 and 11 years of age, in Newark. On April 15, 1929 she

received a decree of divorce a vinculo from Cheney, in the Second Judicial District Court, in the State of Nevada, County of Washoe. She neither sought nor obtained custody of the two children named in the complaint. Process in the case was by substituted service in lieu of personal service in that state and jurisdiction was obtained by publication and serving Cheney personally in the City of Newark. There was no personal service in the "divorce state." Cook v. Cook, 342 U.S. 126, 127, 72 S. Ct. 157, 96 L. Ed. 146 (1951).

The complaint in this case alleges that "on the 15th day of April, 1929, plaintiff and defendant, John Joseph Untermann were married and lived together as man and wife from that date up to August, 1947." No marriage certificate was produced by either party, but the testimony of the appellant, which seems to be concurred in by the respondent, is that they were married in Reno on the same day the decree was granted.

The appellant's prior husband, Harold Edward Cheney, died on July 14, 1945. It does not appear whether Cheney remarried and had children or acquired any realty or other estate which might be affected if the Nevada decree were invalidated.

The final facts in this tangled skein are that on September 28, 1953 the respondent Untermann, on a one-day residence in Juarez, Mexico, obtained a decree of divorce from the appellant and one month later married the defendant Sarah Cayer Kaltman in Greenwich, Conn., on October 25, 1953.

On the trial of the issue below the following facts were brought out on cross-examination of the appellant, which were largely corroborated by the testimony of the respondent Untermann. She admitted attempting to obtain a divorce in this State on the grounds of extreme cruelty, and that prior to her departure for Reno Untermann purchased a home at 20 Evergreen Place, Maplewood, N.J., and the appellant assisted in furnishing that home. Just what the posture of the title to this particular real estate is does not appear clear in the record, although there is a suggestion that it is a tenancy by the entirety. We have some difficulty following

this suggestion, if title was taken in such a manner prior to the Nevada decree. If they were not husband and wife at the time the title was taken, a tenancy in common merely would be created. Cf. Danes v. Smith, 30 N.J. ...


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