Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[79 NJSuper Page 28] Plaintiff appeals from a final judgment of the Chancery Division, dismissing her partition
complaint, adjudging her in contempt for violation of restraining orders entered on July 8, 1959 and on June 9, 1960, denying her request for a counsel fee in opposing the counterclaim, and taxing costs against her.
There is no cross-appeal by defendant from the trial court's dismissal of that portion of the counterclaim which sought to compel plaintiff to take all proper steps necessary to cause the dissolution and vacation of a Florida judgment of divorce obtained by her.
The facts are not in dispute. They are set forth in a written stipulation filed with the court. We find it unnecessary to set forth the stipulation verbatim , since some needless detail has been incorporated therein.
Plaintiff and defendant were lawfully married in New Jersey in 1948. In 1951 they became owners, as tenants by the entirety, of a one-family house located at 65 Battin Road, Fair Haven, New Jersey. The parties and their children made this house their home until June 1959, when plaintiff left and took the children with her. It is agreed that the premises are not capable of being actually partitioned.
On or about June 26, 1959 Mr. Lawrence instituted suit in our Chancery Division to restrain his wife from removing the children from New Jersey, from instituting any suit outside New Jersey, seeking dissolution of the marriage, and from instituting any proceedings outside New Jersey respecting the custody or control of the children. On June 26, 1959 she was restrained, until the further order of the court, from doing so. Pursuant to the direction of said order, a true copy thereof and of the complaint and affidavits was personally served on her at New Shrewsbury, New Jersey, on June 26, 1959. Thereafter, copies of the summons and complaint were served upon her in Coral Gables, Florida, by the sheriff of Dade County, Florida.
Mrs. Lawrence filed no answer and took no steps with reference to her husband's injunction suit in our Chancery Division. The Clerk entered a default on the husband's request. Thereafter, on June 9, 1960, she was permanently
restrained from removing the children from New Jersey and from instituting any suit outside New Jersey for the dissolution of the marriage.
Meanwhile, Mrs. Lawrence left New Jersey on June 29, 1959, took the three children with her to Florida, and she and they have resided there ever since.
On January 4, 1960 she instituted suit in Dade County, Florida, in which she sought a divorce, custody of the three children, and support from her husband. Mr. Lawrence filed in the Dade County court a paper entitled "Special Appearance and Motion to Dismiss for Lack of Jurisdiction," asserting therein that the Florida court lacked jurisdiction over the parties to the suit and over his person. He relied upon his pending action in New Jersey and the restraining order of July 8, 1959. The Florida court denied his motion and held that the paper entitled "Special Appearance" constituted a personal appearance. On May 10, 1960 the Florida court found that it had jurisdiction and granted a divorce a vinculo matrimonii in favor of Mrs. Lawrence. She was awarded full and complete custody of the children and he was ordered to pay $100 weekly for their support and another $100 weekly as permanent alimony to Mrs. Lawrence.
Defendant prosecuted an appeal from the Florida divorce judgment to the District Court of Appeal of Florida, Third District. In an opinion dated June 1, 1961 the Florida District Court of Appeal affirmed the judgment of divorce, found that it had jurisdiction so far as the residence was concerned, but that it did not have jurisdiction to enter a money decree against the defendant. Accordingly, the decree was reversed as to the payment requirements, and in the other respects it was affirmed. Defendant took no further appeal and it is stipulated that the time within which such appeal might have been taken has expired.
On July 19, 1960 plaintiff filed her complaint in the Superior Court, asking for partition of the Battin Road property and the usual incidental relief. She recited the 1951 conveyance to ...