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Nappe v. Nappe

Decided: January 16, 1956.

H. ROSE NAPPE, PLAINTIFF-RESPONDENT,
v.
MORITZ NAPPE, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division.

For reversal in part -- Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justice Heher. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting). Mr. Justice Heher has authorized me to say that he joins in this opinion. Wachenfeld, J., concurring in result.

Oliphant

This is an appeal from a judgment of the Superior Court, Chancery Division, setting aside and declaring null and void a decree of divorce granted on June 30, 1952 to the appellant on his counterclaim in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe. The judgment below contains other provisions which we must consider on this appeal but their resolution largely depends on the validity of the Nevada decree.

This appeal was certified here on our own motion. R.R. 1:10-1(a).

The premise and rationale of the lower court in setting aside the decree of divorce granted to the appellant in the

State of Nevada is that it was fraudulently obtained and therefore not entitled to full faith and credit in this State under the doctrine of our decision in Staedler v. Staedler, 6 N.J. 380 (1951). We are not in accord with the conclusion of the trial court that the Staedler case is controlling here.

This is a bitterly contested case and the record is disjointed and prolix. But a careful reading of the record leads us to the conclusion that the action of the respondent in filing for a divorce in Nevada was voluntarily taken after she had the advice of independent counsel of her own choosing, both in New Jersey and in Nevada. It is true that both the parties immediately returned to the State of New Jersey upon the entry of the decree in Nevada and that both went to Nevada solely for the purpose of obtaining a divorce. That this latter fact is offensive to the public policy of this State is clear both under our statute and our decisions, N.J.S. 2 A:34-22; Peff v. Peff, 2 N.J. 513, 522, 523 (1949); Shepherd v. Ward, 5 N.J. 92, 103 (1950); Judkins v. Judkins, 22 N.J. Super. 516, 523 (Ch. 1952). But on the jurisdictional facts as shown by the record in this case, under the decisions of the United States Supreme Court we are not permitted to challenge their validity except under the doctrine of the second Williams case, Williams v. State of North Carolina, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945), which is only applicable to cases where the jurisdiction of the Nevada court is based upon an order of publication and substituted service and the decree is entered in an ex parte proceeding.

The difficulty arises out of trying to apply the legal fiction of domicile, and it is a fiction, as the basis of jurisdiction of the subject matter and person in this type of case. We must confess that we share the difficulty of most persons in comprehending how a parent with a spouse and minor children is as free to establish a domicile away from the home shared with the spouse and children, as the wild goose of fable and story whose habitation is where it momentarily alights in flight. See Judkins v. Judkins, supra; "Haddock ReVisited,"

39 Harv. L. Rev. 417. We likewise have difficulty in reconciling the cases on divorce under the Full Faith and Credit Clause with the cases on workmen's compensation under the same clause where the question of conflict in public policy in the statutes of two sovereign states presently seems to be controlling over other legal considerations in such fully litigated cases. Cf. Buccheri v. Montgomery Ward Co., 19 N.J. 594 (1955).

But in the situation here presented under the cases above cited our public policy must bow to the constitutional principles set forth in those cases by the United States Supreme Court.

It appears from the record in this case, and it seems to be conceded by both sides, that between the dates of May 12, 1952 and June 30, 1952 the respondent had established a bona fide residence in the State of Nevada sufficient under the Nevada statute to sustain her suit for divorce from her husband on the grounds of extreme cruelty. In her complaint she alleged she was a resident of the State of Nevada and she had taken up her home there with an intent to remain permanently. The husband filed an answer denying knowledge or information sufficient to form a belief as to the wife's allegation of residence and filed a cross-complaint for divorce on the ground of extreme cruelty setting forth, inter alia, a separation agreement entered into in Reno, Nevada, on June 30, 1952. A trial was had on the complaint and cross-complaint before the court sitting without a jury. The respondent testified as to her residence but was not cross-examined with respect thereto, and her residence was corroborated by the owner of the motel in which she resided. The defendant likewise testified and the court awarded him a divorce on the ground of extreme cruelty and incorporated in its decree the provisions of the separation agreement. The respondent was represented by counsel of her own choice and she had the opportunity to raise the domicile question if she so desired, but she did not and we cannot be impressed by her protestation that she was foreclosed from fully contesting the case.

The United States Supreme Court has held that full faith and credit must be accorded a decree divorce of a sister sovereign state if a defendant-spouse appeared in the divorce proceedings and contested the issues; Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 1097, 92 L. Ed. 1429 (1948); or appeared and admitted the domicile, Coe v. Coe, 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451 (1948); or was personally served with process in the state which awarded the decree, Johnson v. Muelberger, 340 U.S. 581, 71 S. Ct. 474, 95 L. Ed. 552 (1951); and if the spouse either admits or contests the issue of plaintiff's domicile or is personally served in the divorce state he is barred from attacking the decree in a sister state, Cook v. Cook, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146 (1951).

In Isserman v. Isserman, 11 N.J. 106 (1952), we held that a decree of the Nevada court was entitled to full faith and credit in this State where the wife through her independently selected counsel, recommended by her New Jersey counsel, appeared in the divorce proceeding instituted by her husband, pleaded to the complaint, filed a cross-complaint and contested the jurisdictional question of the residence of her husband.

The case here presents even a stronger situation under the holdings of these decisions in that it was the respondent-wife who instituted the proceedings in Nevada based upon her residence there which met the statutory jurisdictional requirement of the Nevada court and the case proceeded to final judgment with both sides represented by independent counsel with an opportunity to test the jurisdictional question. Under these principles the final decree of divorce entered in the Second Judicial District Court for the State of Nevada, in and for the County of Washoe, on June 30, 1952, granting a divorce to the defendant-husband on his counterclaim on the ground of extreme cruelty is entitled to full faith and credit in this State insofar as it dissolves the marriage relation of the appellant and respondent here, Robison v. Robison, 9 N.J. 288, 291 (1952); Isserman v. Isserman, supra; Woodhouse v. Woodhouse, 11 N.J. 225, 228

(1953); Stultz v. Stultz, 15 N.J. 315, 319 (1954); Whitehead v. Villapiano, 16 N.J. Super. 415 (App. Div. 1951), unless it can be said that the situation here presented comes within the rule of Staedler v. Staedler, supra.

In Isserman v. Isserman, supra, we carefully distinguished the Staedler case, but we find it necessary again to point out that the Staedler case was based upon specific and particular facts peculiar to it and on those facts we found and stated that every step taken by the wife in the Florida proceeding was under the direct control of her husband and counsel retained by him, and made it clear that it was not a true adversary proceeding to which the rule of Sherrer v. Sherrer, supra, and Coe v. Coe, supra, and other analogous cases were applicable.

We now specifically point out two important facts in the Staedler case that are apparently casually passed over in the application of the principle of that case. The proofs in that case showed clearly and undisputedly, and this court so found, that the husband was not a resident in Florida on September 18, 1947, and that he did not reside in Florida for 90 days next preceding the institution of the action in that state, which was a requisite jurisdictional requirement under the statutes of Florida, and that the plan conceived by him and his counsel in which the wife participated had for its purpose the intent to defraud the Florida court with respect to this fundamental requisite of jurisdiction. Further, the divorce in Florida was instituted pursuant to an agreement which, inter alia, provided and required that the wife would enter "any appearance required in the divorce proceeding" and that should she "oppose said divorce proceeding the said trust shall become inoperative and the monies deposited thereunder shall be returned to the party of the first part."

We came to the conclusion such an agreement was an integral part of the fraud perpetrated on the courts of Florida since it was patently a bargain to bring a divorce suit in which no defense was to be entered and was per se unlawful. Such a situation is clearly distinguishable from the

one before the court here, where the respondent-wife established a residence in the State of Nevada sufficient to meet the jurisdictional requirement of the statute of that state on divorce, and there is nothing in the written agreement incorporated into the final decree that prevented her of and on her own volition at any time to contest her husband's counterclaim in the State of Nevada or to withdraw her own complaint and withdraw from the suit. These facts bring this case within the decision in Isserman v. Isserman, supra, rather than Staedler v. Staedler, supra.

The respondent insisted below and insists here that the entire proceeding in Nevada was a result of a fraudulent scheme in which she and her husband and counsel in New Jersey, independently chosen by each, conspired to commit a fraud upon the Nevada court. The argument is premised in part on the fact that her New Jersey counsel recommended Judge Souter in Nevada as a lawyer who could represent her when she went to Nevada to institute the suit and that subsequently the New Jersey lawyer was consulted and did advise with respect to the property arrangements being entered into by the separation agreement executed in Nevada on June 30, 1952, which is incorporated as part of the Nevada decree.

We have carefully examined the conflicting testimony with respect to the negotiations, advice, and the part played by the New Jersey attorney in representing the respondent's interest both before and after the entry of the Nevada decree. He was dealing with an extremely difficult and explosive situation and it appears he was at all times attempting to protect the respondent's interest to the very best of his ability. He carefully explained and advised as to the law of New Jersey with respect to such cause of action for divorce as the respondent had, particularly as to the quantum of proof required to prove a case on the ground of ...


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