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Fantony v. Fantony

Decided: May 14, 1956.


On appeal from the Superior Court, Chancery Division.

For modification and affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.


[21 NJ Page 529] This is an appeal from a judgment of the Superior Court, Chancery Division, awarding the custody of an infant child to the defendant-respondent mother. The Republic of Cuba was permitted to intervene below since the

plaintiff-appellant is a national of that country. We certified the appeal here on our own motion. R.R. 1:10-1(a).

The appellant married the respondent, who prior to her marriage was a United States citizen and a resident of this State, on July 9, 1948, in Havana, Cuba. They cohabited there until the early part of January 1952. The child Patricia was born in this State at the Fitkin Memorial Hospital, Neptune, New Jersey. The mother came back to this country with the father's permission so that she could be near her own mother when the child was born. Several months later respondent returned with her daughter to Cuba and during the next two years the family visited back and forth with her mother.

In November 1951 the respondent's mother went to Havana to visit her, and on January 9, 1952 the respondent, her mother and the child left Havana by airplane under assumed names. This was admittedly done without the knowledge of the appellant-husband, without his consent and against his will. They have resided in New Jersey ever since.

The appellant followed immediately and on January 22, 1952 filed a complaint in the Superior Court, Chancery Division, asking that the child be produced in court and praying that the custody of the child be awarded to him. When this action came on for final hearing on November 18, 1952 Judge McLean was informed that the parties had composed their differences and that the respondent had agreed in writing to return with their child to Havana shortly after January 1, 1953. The respondent subsequently refused to return to Havana and appellant thereupon secured an order vacating the judgment and reinstating the action for trial.

In the meanwhile, after having instituted this suit in this State in January 1952, the appellant instituted an action for divorce in Havana, Cuba, on the grounds of desertion on July 26, 1952, and process issued in that case on July 30, 1952, and the respondent was personally served in Asbury Park in this State on September 28, 1952. The action was for desertion based upon a six months' desertion which is a ground for divorce under the Cuban law. The respondent

wife did not appear or contest that proceeding. A judgment for divorce on the grounds of desertion was entered in that cause on July 10, 1953, in favor of the appellant, and custody of the child was awarded to the appellant in that case. The judgment was served on the respondent on July 27, 1953.

The matter again came on for final hearing in January 1954, and after several days of hearing Judge McLean held that the parties to this proceeding were domiciled in the Republic of Cuba, residing in Havana at the time this action was instituted and when it was heard, and that the question of custody should be determined in the court of the Republic of Cuba where the parties were domiciled. He dismissed the complaint and the counterclaim of the respondent-wife for maintenance and he denied a motion to supplement the record to set forth the proceeding and judgment for divorce obtained by the appellant in Havana, Cuba. The plaintiff-appellant here then appealed from this judgment and the order denying the application to supplement the record, to the Appellate Division.

On that appeal certified copies of the Cuban divorce and custody proceedings were presented to the Appellate Division, but they expressly reserved any determination with respect to whether such judgment would or would not be conclusive and held that the appellant should have the right to submit the Cuban judgment by way of supplemental complaint and the defendant the opportunity to raise such jurisdictional questions and set up such defenses as would be appropriate, and the cause was remanded for that purpose. Gonzalez-Fantony v. Fantony, 31 N.J. Super. 14 (App. Div. 1954).

The matter then came on for trial before Judge Knight and the record of the Cuban proceedings was established by evidence and there was testimony concerning the laws of Cuba on divorce and custody. Judge Knight held that the record of the Cuban proceedings reciting all the evidence taken and the testimony of the expert on Cuban law taken in this case indicated that no evidence had been or could be received by ...

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