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Wilkins v. Zelichowski

Decided: February 19, 1957.

SHIRLEY WILKINS, OTHERWISE SHIRLEY ZELICHOWSKI, PLAINTIFF-APPELLANT,
v.
STEPHEN E. ZELICHOWSKI, DEFENDANT-RESPONDENT



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

Francis

The plaintiff sought annulment of her marriage to the defendant under N.J.S. 2 A:34-1(e) on the ground that she was under the age of 18 years when the ceremony was performed. The judgment was adverse to her and she appeals.

The record reveals that the plaintiff and defendant, who were residents of New Jersey, went to Indiana for the purpose of being married. They were married there on April 23, 1954 and returned to New Jersey immediately. At that time the wife was 16 years, 11 months and 5 days old, having been born on May 18, 1937. The law of Indiana permitted marriage by a female at 16 years of age. Ind. Ann. Stat. § 44-101 (Burns , 1952).

On returning to this State, they lived together until April 22, 1955 when the husband was sent to the Bordentown Reformatory (where he was still confined at the time of the hearing). This was prior to her eighteenth birthday and the marriage has not been confirmed since that age was attained. She has continued to reside in this State. A child was born to them on February 22, 1955.

The annulment action was instituted on January 4, 1956 and was not contested. However, after hearing the proof and particularly the admitted fact that plaintiff was competent to marry under the Indiana law, the trial court declined to grant the annulment. In order that the question involved might be presented squarely on appeal, the court declared that a favorable judgment, if entered, would be for the best interest of the child. (See the last paragraph of N.J.S. 2 A:34-1.)

Plaintiff predicates her claim to relief on N.J.S. 2 A:34-1(e) which authorizes an annulment when:

"The demand for such a judgment is by the wife and she was under the age of 18 years at the time of the marriage, unless such marriage be confirmed by her after arriving at such age."

And she contends the statute is controlling because the law of the domicile is applicable to the dissolution of marriage.

At the outset of a consideration of the problem, it must be recalled as a basic general doctrine that the law favors marriage and its continuance and frowns upon dissolution of the status by annulment or divorce. Shaffer v. Shaffer , 129 N.J. Eq. 42, 44 (E. & A. 1941); Bednarik v. Bednarik , 18 N.J. Misc. 633, 653 (Ch. 1940); Di Franco v. Di Franco , 103 N.J. Eq. 529 (Ch. 1928); Keller v. Linsenmyer , 101 N.J. Eq. 664, 674 (Ch. 1927); Feickert v. Feickert , 98 N.J. Eq. 444, 448 (Ch. 1926); Pinkinson v. Pinkinson , 92 N.J. Eq. 669, 672 (E. & A. 1921); 11 N.J. Practice (Herr, Marriage, Divorce and Separation) , § 644, at p. 7, § 812, at p. 216, n. 18 (1950).

Marriage is a contract and like other contracts its validity is determined ordinarily by the lex loci contractus. Jordan v. Mohan , 15 N.J. Super. 513 (App. Div. 1951); King v. Klemp , 26 N.J. Misc. 140, 147 (Ch. 1947); Storf v. Papalia , 24 N.J. Misc. 145 (Ch. 1946); Bolmer v. Edsall , 90 N.J. Eq. 299, 306 (Ch. 1919); Smith v. Smith , 52 N.J.L. 207, 213, 214 (E. & A. 1889); Loughran v. Loughran , 292 U.S. 216, 223, 54 S. Ct. 684, 78 L. Ed. 1219, 1223 (1934); Franzen v. E.I. DuPont De Nemours & Co. , 146 F.2d 837, 839 (3 Cir. 1944); Restatement, Conflict of Laws , § 121, p. 129 (1934); Goodrich , " Jurisdiction to Annul a Marriage ," 32 Harv. L. Rev. 806, 811-814 (1919).

The marriage of the parties was governed and sanctioned by the Indiana statute. That public act and the contract which it vitalized, on principles of comity ought to be regarded as binding in New Jersey unless abhorrent to our public policy. King v. Klemp, supra , 26 N.J. Misc. , at p. 151; Smith v. Smith, supra; Bradford Electric Light Co. v. Clapper , 286 U.S. 145, 52 S. Ct. 571, 76 L. Ed. 1026 (1932); Alaska Packers Ass'n v. Industrial Acc. Comm. , 294 U.S. 532, 547, 55 S. Ct. 518, 79 L. Ed. 1044 (1935); McDonald v. McDonald , 6 Cal. 2 d 457, 58 P. 2 d 163, 104 A.L.R. 1290 (Super. Ct. 1936); Restatement, Conflict of Laws, supra , § 129, p. 132; 2 Beale, Conflict of Laws , sec. 129.1 (1935); Paulsen and Sovern , " 'Public Policy'

in the Conflict of Laws ," 56 Colum. L. Rev. 969, ...


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