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Fitzgerald v. Fitzgerald

Decided: March 15, 1961.

ANN FITZGERALD, PLAINTIFF,
v.
CHRISTOPHER FITZGERALD, DEFENDANT



Fulop, J.c.c. (temporarily assigned).

Fulop

Plaintiff sues for divorce on the grounds of extreme cruelty and constructive desertion. The husband was personally served with process at or near his wife's residence in New Jersey. The action is uncontested. The question to be determined is whether the court has jurisdiction of the subject matter.

Plaintiff resides in Elizabeth, New Jersey, and had resided there for slightly over two years before the commencement of the action. Prior to that time she lived in the State of New York where her husband still resides.

The parties were married on July 13, 1946 in the State of New York. In June 1958 plaintiff left her husband and came to New Jersey with the two children of the marriage. She charges that she did so by reason of the extreme physical and mental cruelty of the defendant. All of the alleged acts occurred in New York, none in New Jersey.

Jurisdiction in actions for divorces is granted by N.J.S. 2 A:34-10, which provides as follows:

"Jurisdiction in actions for divorce, either absolute or from bed and board, may be acquired when process is served upon the defendant as prescribed by the rules of the supreme court, and:

1. When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the 2 years next preceding the commencement of the action a bona fide resident of this state; or

2. When, since the cause of action arose, either party has become, and for at least 2 years next preceding the commencement of the action has continued to be, a bona fide resident of this state; provided the cause of action alleged was recognized in the jurisdiction in which such party resided at the time the cause of action arose, as a ground for the same relief asked for in the action in this state."

Plaintiff has neither alleged nor proved the law of New York. If she relies upon subparagraph 2 of the above quoted statute, this omission is fatal to her case. The burden of proof is upon the plaintiff to allege and prove the applicable foreign law constituting an element of her case

under New Jersey law. Buckley v. Buckley , 95 N.J. Eq. 783 (E. & A. 1923).

The court may take judicial notice of the law of a foreign jurisdiction even though it is not pleaded or proved. N.J.S. 2 A:82-27, 28; M.N. Axinn Co. v. Gibraltar Development, Inc. , 45 N.J. Super. 523 (App. Div. 1957); Colozzi v. Bevko, Inc. , 17 N.J. 194 (1955). But that rule does not seem applicable when the foreign law is an essential element of the plaintiff's claim for relief of a type disfavored in the law. In any event, plaintiff does not rely on the law of New York, and adultery is the only ground for absolute divorce in that state. New York Civil Practice Act , § 1147.

With respect to the count for divorce based on extreme cruelty, it is clear that no cause of action arose in New Jersey. All of the acts of alleged cruelty occurred while the parties were domiciled in the State of New York where it is not a ground for divorce. See 11 N.J. Practice (Herr, Marriage, Divorce and Separation) , § 754 (Lodge , 2 d ed. ...


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