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Warrender v. Warrender

Decided: May 9, 1963.

ROSEMARY WARRENDER, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
JOHN WALKER WARRENDER, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

Plaintiff wife sued for separate maintenance, the voiding of a Mexican divorce decree secured by her against defendant with his cooperation and connivance, and custody of a four-year-old daughter of the parties. The trial court denied both maintenance and relief against the Mexican judgment on the ground of plaintiff's unclean hands in procuring a patently void divorce contrary to our laws and concepts of public policy. She was, however, awarded custody of the child and a counsel fee. Plaintiff and defendant each appeal those aspects of the judgment adverse to their respective positions.

The parties were married in 1953 in Newark and have always since been domiciliaries of this State. For the first four years of the marriage the defendant was in the military service, and the parties lived at the various posts where he was stationed. Thereafter they resided for a time with his parents in Irvington and later moved into a home of their own in South Plainfield.

Early in 1959 the parties began to discuss divorce. The basis for their differences is somewhat obscure, but it is irrelevant to this appeal. There is no suggestion that either had a cause of action for divorce under our statutes. There is some indication that the plaintiff urged defendant to find a way by which they could be divorced. In September 1959 defendant, after inquiry on the subject, consulted a New York lawyer. A separation agreement was drawn and signed October 6, 1959, pursuant to which plaintiff was to receive $2,000 and defendant to have custody of the child (her position is that the latter arrangement was intended to be temporary until she could find employment). Another New York lawyer, called in by the first, made the arrangements for the Mexican divorce. The same day the agreement was signed in New York plaintiff took a plane to El Paso, which is just across the border from Juarez, in the State of Chihuahua, Mexico. Plaintiff taxied to Juarez the next day, and met the Mexican attorney. They went to a public building where she signed papers he presented to her. Two hours later she was back in El Paso, and shortly thereafter she flew back to New York. She had not spent one night in Mexico. All the expenses of the trip were defrayed out of the $2,000 paid to plaintiff by defendant.

The Mexican decree, dated October 9, 1959, recites that both parties submit to the jurisdiction of the court by their respective attorneys and that defendant admits the charge of incompatibility of temperaments of the parties, on which ground the divorce was granted. Nowhere does the decree declare the residence or domicile of either party to be in the Mexican state.

Plaintiff testified that just prior to taking the plane to Mexico she telephoned defendant asking for a reconciliation and that he said he was too tired to discuss it. He denied this. However, she testified that almost as soon as she returned from Mexico she sought a reconciliation and repeated these requests many times but that he always refused. At the trial she testified: "I have been wanting to go back for

two years. I do love him, and he just refuses to have anything to do with it." Defendant admitted this, but said the first request was made a month or two after her return. This action was instituted 15 months after the procurement of the Mexican judgment.

Neither party has remarried. Prior to the institution of the action defendant, living with his parents, had custody of the child, plaintiff exercising liberal visitation privileges. Since the judgment herein plaintiff has had general custody, but the child has spent the daytime hours, when plaintiff is employed, at defendant's home, in charge of his mother. Recently the child has been attending a day school mornings.

The principal issue on this appeal is whether on the law and the facts plaintiff is barred from aid of the court in requiring defendant to support her as his wife and requesting the court to declare the Mexican divorce void, by reason of her conduct in obtaining the divorce under the circumstances related.

There is no question but that the Mexican divorce is absolutely void on its face and that it has not legally terminated the marriage of the parties. Both parties were and are domiciliaries of New Jersey, and there is not the faintest pretense of adjudication by the decree of either residence or domicile of either of them in Mexico when rendered. Tonti v. Chadwick , 1 N.J. 531 (1949); State v. Najjar , 2 N.J. 208 (1949); State v. DeMeo , 20 N.J. 1, 14 (1955); Untermann v. Untermann , 19 N.J. 507, 516 (1955); Flammia v. Maller , 66 N.J. Super. 440, 451 (App. Div. 1961). For present purposes there is no basis for according greater recognition to a Mexican divorce on a one-day appearance than to the mail-order variety. In the Untermann case, supra , involving a "one-day residence in Juarez" (19 N.J. , at p. 513), the Supreme Court held ...


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