[75 NJSuper Page 542] This is an action to set aside a divorce obtained by the defendant in
the Winston County Circuit Court of Alabama on March 8, 1961, to procure a divorce by the plaintiff against the defendant on the ground of the adultery of the defendant; for custody of the child of the marriage between plaintiff and defendant, and for alimony and support.
The parties herein were lawfully married on November 29, 1952 in North Plainfield, New Jersey. The plaintiff, Mary Margaret Guerieri, presently resides at 39 Matthew Drive, Hamilton Square, New Jersey, while the defendant, John Guerieri, Jr. now resides at 247 Pope Avenue, Hamilton Township, New Jersey. Since receiving his Alabama divorce John Guerieri has married Rosalia R. Acolia with whom he is living at this time.
The defendant appeared personally before the Alabama Court on March 4, 1961, where he filed a complaint against the plaintiff for divorce on the ground of cruelty. At this time he produced a paper entitled "Answer and Waiver," which was signed by his wife on January 17, 1961. This "Answer and Waiver" provides:
"Comes the Respondent in the above styled cause and accepts service of a Bill of Complaint heretofore filed in said cause; waives notice of the filing of interrogatories in said cause, and the right to cross same; waives notice of the taking of testimony in said cause; waives the appointment of a Commissioner for the taking of testimony and consents that testimony may be taken by affidavit, or affidavits before any Notary Public or other officer authorized to administer oath or commission appointed by the Court, or as provided by Alabama Code 1940, Title 7, Section 475, or otherwise in said cause, and consents that the cause may proceed and be submitted for final decree without further notice whatever to the respondent.
And for answer to the Bill of Complaint heretofore filed in this cause, Respondent denies the allegations thereof except those pertaining to the existence of the marriage relationship and jurisdiction and demands strict proof thereof."
At the same time the defendant produced his wife's appointment of Alabama counsel, which also was executed on January 17, 1961.
The plaintiff claims that this waiver and appointment of counsel was achieved through threats and the exertion
of undue pressures. In fact, on January 19, 1961 she sent a telegram to John Guerieri repudiating the waiver and appointment because of misrepresentation and absence of legal counsel. However, the defendant produced another statement signed by Mrs. Guerieri, dated February 9, 1961, advising him to disregard the telegram sent on January 19, 1961. The plaintiff also claims that this statement was procured by threats and pressures, and by the promise that no divorce proceedings would be initiated without consulting her. It is further alleged by the plaintiff that she knew nothing of the institution of the proceedings in Alabama, was not served with any complaint or summons therein, and knew nothing of the granting of the decree for divorce or of its existence until she saw in the Trenton Times newspaper a notice of application for a marriage license by John Guerieri, Jr. and Rosalia R. Acolia on November 3, 1961.
The relevant law of Alabama, as amended July 6, 1945, provides:
"When the defendant is a non-resident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged and proved; provided, however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action." Ala. Code of 1940 Title 34, section 29.
Jennings v. Jennings , 251 Ala. 73, 36 So. 2 d 236, 3 A.L.R. 2 d 662 (1948), concerned the power of the Legislature to authorize a decree of divorce in Alabama when the parties are personally before the court, but reside in another state. The Supreme Court of Alabama therein held:
"Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law. Williams v. North Carolina , 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366; Bell v. Bell , 181 U.S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews , 188 U.S. 14, 23 S. Ct. 237, 47 L. Ed. 366; Sherrer v. Sherrer , 334 U.S. 343, 68 S. Ct. 1087, 1097, 92 L. Ed. 1429; Wilkes v. Wilkes , 245 Ala. 54, 16 So. 2 d 15.
* * * it is recognized that unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer jurisdiction on the courts of that state to grant a ...