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Schlemm v. Schlemm

Decided: February 22, 1960.


For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Proctor and Schettino. For modification -- Justice Francis. The opinion of the court was delivered by Jacobs, J. Francis, J. (dissenting in part).


The parties cross-appealed from a judgment entered in the Chancery Division. We certified their appeals on our own motion while they were pending in the Appellate Division.

The parties were married in 1933 and lived together in New Jersey until 1953. No children were born of their marriage. In 1952 the plaintiff-wife filed her complaint in the Chancery Division seeking a divorce and support and maintenance and the defendant-husband filed his answer and counterclaim seeking a divorce. On July 22, 1953 they both appeared in the Chancery Division with their counsel who advised the court that the parties had reached a mutual understanding which was then fully set forth in the record and which was to the following effect: The complaint and counterclaim in the Chancery Division were to be dismissed; the defendant agreed to convey to the plaintiff his interest in property located at 639 Ocean Avenue, Sea Girt, New Jersey and owned by the parties as tenants by the entirety; the defendant agreed to give the plaintiff a bill of sale for the contents of the house located at Sea Girt; the defendant agreed to give the plaintiff $3,000 in cash, she in turn was to waive any rights to the personal property and contents in the house located at Columbia Terrace, Weehawken, New

Jersey and owned by the parties as tenants by the entirety, and no conveyance or change of any kind was to be made in the title to the Weehawken property; the defendant agreed to transfer to the plaintiff a Cadillac automobile and to provide and maintain proper insurance on it; and the defendant "agreed to provide for the wife to maintain the properties and upkeep and further carrying charges just in the manner that he has been doing up to the present date so that she will be provided for in the same manner and to the same degree as she has been provided for by him up to this time." Immediately after the mutual understanding was set forth in the record the court requested that counsel present "a conformable Order with this conclusion to dismiss"; the formal order was not actually entered until September 25, 1953. It bore consents by counsel for both parties, stated that the parties had personally appeared before the court on July 22, 1953, had advised through their counsel that they had reached an amicable settlement and had embodied the terms of their settlement in the record, and adjudged that the complaint and counterclaim "be and the same are hereby dismissed, without prejudice, as of July 22nd, 1953."

After leaving the courtroom on July 22, 1953 the defendant transferred his interest in the Sea Girt property to the plaintiff and gave her $3,000 in cash; apparently the Cadillac automobile was also duly transferred to her. On the same day Mr. Robert Spearing, the plaintiff's son by a previous marriage, placed approximately $50,000 belonging to the defendant in a safe deposit box in the Commonwealth Trust Company. On July 25, 1953 the defendant left for Reno, Nevada and shortly thereafter he consulted Mr. Souter, a Nevada attorney, with regard to a divorce. Under date of July 30, 1953 Mr. Souter wrote to the plaintiff advising that the defendant had consulted him and enclosing a power of attorney by which the plaintiff could authorize an attorney to appear on her behalf. Mr. Souter's letter stated that he was suggesting that she select Mr. Johnson as her attorney on the assumption that she was not

familiar with Nevada attorneys but that she should feel free to substitute "the name of any other attorney in Reno." Mr. Souter's letter concluded with the comment that if she desired "to seriously contest any action for divorce which Mr. Schlemm may institute here" then she should disregard his letter and that "in any event, I strongly recommend that you take my letter and the Power of Attorney to competent counsel and be advised by him." Under date of August 1, 1953 the plaintiff wrote to Mr. Souter stating that she would be glad to do as suggested "immediately upon Mr. Schlemm's settling with me for the Insurance Policy which I hold in the amount of $20,000" and "if he will forward me a check for half of this amount I shall execute the power and send it to Mr. Johnson together with the policy." On August 6, 1953, after a conference with her son Mr. Spearing and her nephew Mr. Kenneth W. Higgins, the plaintiff delivered to her son the power of attorney which had been signed by her and had been notarized in New York; Mr. Higgins, who was a notary public of New Jersey, also affixed his name and notarial seal to the power of attorney and it was then mailed to Nevada. On the following day, August 7, 1953, Mr. Spearing took the $50,000 from the safe deposit box in the Commonwealth Trust Company and delivered it to the plaintiff.

On September 8, 1953 Mr. Schlemm and his attorney Mr. Souter appeared in the Second Judicial District Court of the State of Nevada in and for the County of Washoe to prosecute his divorce complaint which charged the defendant with mental cruelty. An answer was filed by Mr. Johnson as attorney for Mrs. Schlemm, acting pursuant to the power of attorney. The answer alleged, as a separate defense, that Mr. Schlemm's residence was not bona fide but was "a simulated residence, acquired solely for the purpose of laying a jurisdictional basis for an action for divorce." Mr. Schlemm testified on direct examination that he had resided in Nevada since July 25, 1953 and that he had come there with the intention of making Nevada his "permanent home for an

indefinite period." On cross-examination by Mr. Johnson, Mr. Schlemm stated that it was his intention to make Nevada his home for an indefinite period and that he had no present intention of becoming a citizen of any state other than Nevada. In its findings of fact and conclusions of law, the court determined that Mr. Schlemm was a bona fide resident of Nevada, that the court had jurisdiction of the parties and the subject matter of the proceeding, that Mr. Schlemm had established the allegations of his complaint, and that he was entitled to a decree of divorce. The formal decree of the Nevada court was entered on September 8, 1953 and, after referring to the findings of fact and conclusions of law, adjudged that Mr. Schlemm "be, and he hereby is, granted a decree of divorce," final and absolute in form and that "the bonds of matrimony now and heretofore existing" between Mr. and Mrs. Schlemm "are fully, completely and forever dissolved." Shortly after the entry of the decree Mr. Schlemm returned to New Jersey.

On August 7, 1957 the plaintiff Mrs. Schlemm executed deeds which conveyed to the defendant Mr. Schlemm her interest in the property located at Columbia Terrace, Weehawken and in property which is located in Union City and had been conveyed to Mr. and Mrs. Schlemm in 1936. For the execution of these deeds Mr. Schlemm paid $25,000 to Mrs. Schlemm and $2,500 to her counsel. Both of the deeds described Mrs. Schlemm as unmarried although in an agreement dated August 7, 1957, which accompanied the execution of the deeds, Mrs. Schlemm purported to reserve "any and all rights or claims she may have to challenge and attack the legality and validity" of the divorce proceedings in Nevada. On February 20, 1958 the plaintiff filed a complaint in the Chancery Division which set forth the agreement or understanding between the parties which was placed on the record in open court on July 22, 1953, alleged that the defendant had failed to comply with that portion of the agreement or understanding which related to her support and demanded a judgment declaring the Nevada divorce to

be of no force and effect and directing the defendant to provide suitable support and maintenance and to pay all sums due under the agreement of July 22, 1953. The defendant filed an answer which asserted that the Nevada divorce was entitled to full faith and credit in the courts of New Jersey, denied that he was under any obligation to support or maintain the plaintiff and advanced the additional defenses of unclean hands and laches.

After taking evidence and hearing argument the Chancery Division made its determinations and entered its judgment dated January 16, 1959 from which the parties have cross-appealed. It found that, since Mrs. Schlemm had voluntarily submitted herself to the jurisdiction of the Nevada court and had appeared in the Nevada proceeding through her counsel, Mr. Johnson, who had been authorized to appear for her by her power of attorney, the Nevada divorce decree was entitled to full faith and credit in our courts under the explicit holdings of the United States Supreme Court in Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 1097, 92 L. Ed. 1429, 1 A.L.R. 2 d 1355 (1948) and Coe v. Coe, 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, 1 A.L.R. 2 d 1376 (1948). See Nappe v. Nappe, 20 N.J. 337, 343 (1956); Isserman v. Isserman, 11 N.J. 106, 113 (1952). In addition, it concluded that the plaintiff did not come into equity with clean hands and was guilty of laches, citing Sleeper v. Sleeper, 129 N.J. Eq. 94 (E. & A. 1941). See Woodhouse v. Woodhouse, 11 N.J. 225, 229 (1953); Judkins v. Judkins, 22 N.J. Super. 516, 537 (Ch. Div. 1952); cf. Untermann v. Untermann, 19 N.J. 507, 519 (1955).

The Chancery Division also found that the understanding between the parties embodied in the records of the court on July 22, 1953 was a fair and just agreement which remained in full force and effect and was not in any wise altered by the Nevada decree which made no mention of it and did not purport to affect it. See Hettich v. Hettich, 304 N.Y. 8, 105 N.E. 2 d 601 (1952); cf. Equitable Life Assur. Society of United States v. Kretzschmar, 21 N.J. 129, 135

(1956). It construed and applied the July 22, 1953 agreement in the light of the evidence introduced before it and adjudged (1) that the defendant pay to the plaintiff the sum of $37,273.53, representing arrearages from July 22, 1953 to the date of the judgment, for the support of the plaintiff and for expenditures made by her for taxes, insurance, utilities and heat in connection with the Sea Girt property and for medical expenses incurred by her, (2) that the defendant pay $100 per week, commencing on the date of the judgment, for the plaintiff's support and pay expenses incurred thereafter for taxes, insurance, utilities and heat in connection with the Sea Girt property and for medical expenses incurred by her, (3) that no allowance be made to the plaintiff for capital improvements or repairs made by her to the Sea Girt property or for furniture purchased or to be purchased for use therein, and (4) that the defendant pay a counsel fee of $7,500 and costs. The plaintiff's appeal is from so much of the judgment as gives full faith and credit to the Nevada decree and refuses to give her an allowance for capital improvements, repairs and furniture at the Sea Girt property. The defendant's appeal is from so much of the judgment as provides for enforcement of the support and maintenance provisions of the agreement of July 22, 1953 and the allowance of the counsel fee to the plaintiff's attorney.

No purpose would be served by reviewing the state or federal authorities prior to Sherrer v. Sherrer, supra and Coe v. Coe, supra, for it is beyond dispute that these opinions of the United States Supreme Court now bind us to honor Nevada divorce decrees in instances where the Nevada courts have made jurisdictional findings of domicil in proceedings in which both parties have participated. In the Sherrer case the Supreme Judicial Court of Massachusetts struck down a Florida divorce which the wife had obtained in a proceeding in which the husband appeared personally and through counsel and in the Coe case the same court struck down a Nevada divorce which the wife had obtained on her

cross-complaint in a proceeding instituted by her husband. The Massachusetts court found that the parties were domiciled in Massachusetts and not in Florida or Nevada and that it was not obliged to accept the jurisdictional findings of domicil which were made in the Florida and Nevada proceedings. See Sherrer v. Sherrer, 320 Mass. 351, 69 N.E. 2 d 801 (1946); Coe v. Coe, 320 Mass. 295, 69 N.E. 2 d 793 (1946). In reversing, the United States Supreme Court held that the full faith and credit clause of the Federal Constitution compelled recognition by the Massachusetts courts of the validity of the Florida and Nevada divorce decrees; in the course of his opinions for the court, Chief Justice Vinson stressed that the clause was incorporated into the Constitution as a means of national unification and that its sympathetic application without regard to varying local state policies was an essential of our federal system. See Johnson v. Muelberger, 340 U.S. 581, 584, 71 S. Ct. 474, 476, 95 L. Ed. 552, 556 (1951):

"From judicial experience with and interpretation of the clause, there has emerged the succinct conclusion that the Framers intended it to help weld the independent states into a nation by giving judgments within the jurisdiction of the rendering state the same faith and credit in sister states as they have in the state of the original forum. The faith and credit given is not to be niggardly but generous, full. '[L]ocal policy must at times be required to give way, such "is part of the price of our federal system."'

This constitutional purpose promotes unification, not centralization. It leaves each state with power over its own courts but binds litigants, wherever they may be in the Nation, by prior orders of other courts with jurisdiction. 'One trial of an issue is enough. "The principles of res judicata apply to questions of jurisdiction as well as to other issues," as well to jurisdiction of the subject matter as of the parties.' The federal purpose of the clause makes this Court, for both state and federal courts, the 'final arbiter when the question is raised as to what is a permissible limitation on the full faith and credit clause.'" 340 U.S., at page 584, 71 S. Ct., at page 476, 95 L. Ed., at page 556.

See also Estin v. Estin, 334 U.S. 541, 545, 68 S. Ct. 1213, 92 L. Ed. 1561, 1567, 1 A.L.R. 2 d 1412, 1417 (1948).

Any doubts which may have been originally entertained (cf. Staedler v. Staedler, 6 N.J. 380 (1951)) as to the sweep of Sherrer and Coe have been fully dissipated by later expressions in the Supreme Court and elsewhere. Thus in Johnson, supra, the court after referring to the constitutional clause and its treatment in the earlier cases dealing with foreign divorces, and after noting that in Sherrer a Florida divorce, "where both parties appeared personally or by counsel," was held binding, had this to say:

"It is clear from the foregoing that, under our decisions, a state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree." 340 U.S., at page 587, 71 S. Ct., at page 477, 95 L. Ed., at page 557.

See Cook v. Cook, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146 (1951); cf. Griswold, "Divorce Jurisdiction and Recognition of Divorce Decrees -- A Comparative Study," 65 Harv. L. Rev. 193, 216 (1951), where the Dean, after referring to Sherrer, Coe and Johnson, stated their effect to be that "where the absent spouse participates in divorce proceedings by appearance (which may be through an attorney), by filing an answer, or by otherwise taking part, the divorce which is granted is binding and effective, and must be recognized in other states." He noted further that this was not necessarily a determination that the court had jurisdiction to grant divorce but depended rather "upon a rule that the participating spouse is precluded by res judicata from questioning that jurisdiction." See Paulsen, "Divorce Jurisdiction by Consent of the Parties -- Developments Since 'Sherrer v. Sherrer '," 26 Ind. L.J. 380 (1951); Bozeman, "The Supreme Court and Migratory Divorce: A Re-examination of an Old Problem," 37 A.B.A.J. 107 (1951).

In Chittick v. Chittick, 332 Mass. 554, 126 N.E. 2 d 495 (1955), the wife left Massachusetts for the Virgin Islands, obtained a divorce there after six weeks' residence, and returned to Massachusetts; the husband did not go to the

Virgin Islands but his appearance in the divorce proceeding was entered through counsel acting pursuant to a power of attorney. In a later Massachusetts action by the wife for separate maintenance, the trial judge found that neither the wife nor the husband had ever been domiciled in the Virgin Islands, that the husband had joined with his wife in obtaining a Virgin Islands decree of divorce and had entered into an agreement in which she was to receive a stipulated payment on the entry of the decree, and that the divorce was the result of fraud and collusion. This finding was set aside by the Supreme Judicial Court of Massachusetts in an opinion which held that under Sherrer and Coe, the Virgin Islands divorce was entitled to full faith and credit in the courts of Massachusetts; in his opinion for the court, Chief Justice Qua pointed out that "there was no evidence of fraud committed by either of ...

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