Goldmann, Foley and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.
[66 NJSuper Page 443] Plaintiff brought an action in the Chancery Division seeking partition of properties standing
in the names of defendant Charles Maller and Mary Maller (formerly Mary Flammia, and now deceased). The property, as described in the amended complaint, consisted of (1) the premises at 811 Rose Parkway, Linden, N.J., in which the Mallers lived, and (2) the lot adjacent thereto. Defendant Maller appeals from the judgment which (1) declared plaintiff and defendant to be owners in common of the property, subject to plaintiff's curtesy right in defendant's undivided one-half part; (2) impressed a lien on all the property in favor of defendant for $4,422.92, representing monies expended by him in payment of taxes, insurance premiums, necessary repairs and similar charges; (3) impressed a lien on plaintiff's undivided one-half interest in favor of defendant, for $1,035.10 expended by him for Mary Maller's funeral; (4) impressed a lien on plaintiff's undivided one-half interest in favor of the State of New Jersey for transfer inheritance taxes assessed or to be assessed by reason of Mary Maller's death; and (5) directed a sheriff's sale of the properties in separate parcels.
Plaintiff married Mary Kuczynski (hereinafter referred to as the decedent) on November 26, 1936. He enlisted in the United States Navy in November 1942, and was discharged in October 1945. While he was in service his wife initiated divorce proceedings in Mexico, and on December 18, 1944 obtained a decree purporting to dissolve the marriage. Plaintiff was never served with any papers, nor did he receive any notice or participate in that proceeding by appearance, answer or otherwise. It is conceded that the decree is null and void.
On May 7, 1947 defendant married Mary Flammia and lived with her as husband and wife at the Linden address continuously for some 11 years until her death on September 22, 1958. She died intestate without leaving any children, either natural born or adopted, or any children of deceased children.
According to the abstract of title in evidence, the property at 811 Rose Parkway was conveyed to "Francis Kuczynski
and Mary Kuczynski, his daughter" by warranty deed dated February 3, 1940. Francis was Mary's father, and a widower. Just why the property was conveyed to Mary by her maiden name when she was already married to plaintiff is not explained. On the same day the father conveyed his undivided one-half interest to "Mary Kuczynski," on condition that he be allowed to remain in possession during the term of his natural life and that Mary support him. Difficulties apparently arose between decedent and her father, for he instituted a suit in December 1947 to set aside the transfer of his undivided one-half interest. The suit seems to have been amicably settled, for in October 1948 the father gave his daughter a quitclaim deed in which she was described as "Mary Maller." Defendant contributed $1,500 for this release of the father's interest. Four years later, on December 27, 1952, decedent executed a bargain and sale deed, in which defendant joined, conveying the house to "Charles Maller and Mary Maller, his wife," the deed reciting that its purpose was to create an estate by the entirety.
The lot adjacent to the home was conveyed to "Charles Maller and Mary Maller, his wife" by deed dated December 16, 1952. It appears that defendant paid the entire purchase price, $450.
Plaintiff contended in the Chancery Division that defendant and decedent held the properties as tenants in common and not as tenants by the entirety, since they were not legally married. Accordingly, as Mary's sole heir he was entitled to inherit her one-half undivided interest in the properties by operation of the intestacy laws, and had a right of curtesy in the remaining one-half, his inchoate right of curtesy having become consummate at her death.
On this appeal defendant urges that (1) plaintiff is barred from invoking the aid of a court of equity and asserting his claim as decedent's husband, by reason of estoppel, laches, and unclean hands; (2) the trial court should not have granted plaintiff's prayer to convert the
tenancy from an entirety to one in common, but the estate should be deemed a joint tenancy with survivorship in defendant -- an issue not raised below; (3) plaintiff, claiming as an heir of his spouse, cannot assert a claim or position which she would have been estopped from asserting or taking; (4) assuming plaintiff to be decedent's lawful husband, he nevertheless holds her interest in trust for defendant -- yet another issue not raised below; and (5) assuming plaintiff is entitled to partition, the trial court erred in disallowing reimbursement and contribution to defendant for certain expenses mentioned hereafter.
As noted, defendant concedes the invalidity of the Mexican divorce decree; he so stipulated at the trial. Thus, plaintiff and Mary were lawfully husband and wife at the time of her death. Nonetheless, defendant contends that plaintiff is estopped or barred by laches and unclean hands from asserting any claim as decedent's husband.
A person may be precluded from questioning the validity of a divorce decree if, under all the circumstances, his conduct has led to the obtaining of the decree or for any other reason has been such as to make it inequitable to permit him to deny its validity. Restatement, Conflict of Laws (1948 supp.), § 112, p. 110, comment (c); 17 Am. Jur., Divorce and Separation , § 536, p. 631 (1957). In Schlemm v. Schlemm , 31 N.J. 557, 572 (1960), our Supreme Court observed there were equitable principles which might well be invoked to bar Mrs. Schlemm's collateral attack on a Nevada divorce in which she had participated. The court quoted with approval from Judkins v. Judkins , 22 N.J. Super. 516, 537 (Ch. Div. 1952), where we said:
"Our courts have not hesitated to import into divorce and nullity suits, which are sui generis , maxims and rules commonly applied in equity suits. * * * Among the circumstances which may be material are unclean hands, laches, undue delay, or the generally inequitable conduct of the party seeking relief."
Although the present suit is not a matrimonial action, but one for partition of real property, it does involve a collateral attack on a divorce decree and hence may be barred by the establishment of such equitable defenses as estoppel, laches and unclean hands.
Some of the factors to be considered in determining whether an individual is estopped from collaterally attacking a void divorce decree were set forth in Hollingshead v. Hollingshead , 91 N.J. Eq. 261, 274 (Ch. 1920):
"Among the facts and circumstances which are or may be material factors in such a controversy are whether the divorce decree is void or voidable, whether it was obtained by the present complainant, or was participated in by him, whether it was obtained with or without collusion or fraud upon the court or fraud or duress upon the adverse party, whether the other spouse has since died, or married again, whether there are children by such second marriage, whether the complainant has 'accepted the benefits' of the divorce, such as alimony or by marrying again, whether or not the other spouse participated in the divorce, or acquiesced, whether complainant has been guilty of laches or undue delay, what the nature of the new suit is and the motive or object of complainant in bringing it; whether the complainant is an original party to the divorce action, or a child, or heir or representative, and the like."
Applying these standards, defendant places great reliance on plaintiff's alleged participation or acquiescence in the void divorce. The facts on which he depends are these:
During the latter part of 1944, while plaintiff was stationed at a naval depot, he was approached by a New York attorney who said he represented the wife and who requested him to sign a form acknowledging service and appearance in the Mexican court. Plaintiff refused until he had had an opportunity to talk to his wife. He spoke to her a month later, and she informed him she wanted a divorce. He then spoke to his New Jersey attorney, who told him that the wife had no grounds and if she obtained a Mexican divorce it would be invalid.
Decedent obtained her Mexican decree on December 18, 1944. She had not told plaintiff that she was prosecuting
a divorce action in Mexico, or informed him of the entry of the decree. Apparently the decree was obtained by a so-called "mail order" Mexican divorce proceeding. On January 6, 1945, plaintiff again conferred with his attorney and told him he was being shipped out to sea, that his wife wanted a divorce, and that he had received a form from her attorney which "they wanted me to sign." The two, accompanied by plaintiff's brother-in-law, then went to the wife's home where a discussion about the divorce ensued. Plaintiff testified that he told his wife, "If you want a divorce, if it will make you happy, O.K., but let me know when you get it." He then signed the form and left it with her. The form stated that he knew of the filing of the divorce action, acknowledged the existence of incompatibility between himself and his wife and a divorce should be granted for that reason, and submitted himself to the jurisdiction of the Mexican court. He authorized his attorney to receive notification of the divorce.
At the time plaintiff signed this form he was completely unaware that a decree had already been entered. His signature was thus obtained after entry of the decree and through the deceit of his wife. Her undoubted motive in obtaining this consent was to buttress the mail order divorce.
Plaintiff's conduct may have evinced an acquiescence in his wife's obtaining a divorce, but he did not participate in the Mexican divorce proceeding itself. His acquiescence was subsequent to the entry of the decree and must be sharply distinguished from any participation in the divorce. His conduct in no way led to the obtaining of the decree.
Equitable estoppel embodies the doctrine that one may not repudiate an act done or a position assumed where that course would work injustice to another who, having the right to do so, relied thereon. McAlpine v. Garfield , 25 N.J. Misc. 477, 480 (Cir. Ct. 1947), affirmed 137 N.J.L. 197 (E. & A. 1948). The essence of equitable estoppel is that one is precluded ...