Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiff's supplemental complaint seeks the invalidation of a judgment of divorce secured by defendant against him in Nevada on the ground that she was not a bona fide resident of Nevada, but rather of New Jersey, when it was entered. The trial court entered a judgment of dismissal on the motion of the defendant at the conclusion of the plaintiff's case.
The following facts were proven or stipulated at the hearing. The parties, both of whom were lifelong residents of New Jersey theretofore, married June 7, 1959 at West Orange. They went to live at 89-11 Church St., Paterson. After 11 weeks of cohabitation defendant left plaintiff and shortly thereafter instituted a suit for annulment against him in the Chancery Division predicated on his alleged misrepresentation to her of his religious faith. On October 26, 1961 defendant voluntarily consented to, and there was entered of record, a judgment of dismissal of her annulment action with prejudice, her attorney having advised her, as he tells us, that her complaint therein was devoid of legal merit.
On November 8, 1961 defendant left New Jersey for Nevada. Immediately prior thereto she was residing with her mother at 437 East 33rd Street in Paterson. On November 24, 1961 defendant wrote to plaintiff as follows:
"Dear Bill, Nearly twenty-seven months have gone by since we separated and you have done nothing to end our legal ties. I have taken up residence in Nevada and am very happy here. If it is all right with you, my attorney will send you papers and forms for you to sign and return to him. I will assume all the legal fees if there is no contest. You will avoid all the local publicity this way. Please let me know if this is agreeable with you. Hoping to hear from you shortly, Hannah."
On November 27, 1961 plaintiff responded to the foregoing letter as follows:
"Dear Hannah: I received your note. In replying to the same, feel that you have treated me wrongly. You were advised by several lawyers that you had no cause of action against me, and that I had done nothing wrong. Further, there was no basis for a suit for divorce anywhere. The last time I discussed this matter was with a lawyer by the name of Saltzman. And I told him what I am telling you. That I am not going to consent to any divorce. I don't know who advised you to go to Reno, but I am going to contest your right to a divorce in Nevada. As far as any publicity is concerned, I am in the right and if there is any bad publicity, it will be directed toward you. This is the way I feel and I want you to know it now before you spend anymore money foolishly. Sincerely, Bill."
About February 15, 1962 plaintiff was served by mail in New Jersey with a summons issued out of a Nevada court, with complaint annexed, at the instance of defendant herein as complainant, seeking a divorce on grounds of mental cruelty and an annulment for misrepresentation of religious faith. The Nevada complaint recites that the plaintiff wife has for more than six weeks previously resided in Washoe County, Nevada "with the bona fide intent to make Nevada her home for an indefinite period of time."
Plaintiff did not appear in the Nevada action but filed a complaint in the Superior Court of this State attacking the Nevada proceedings as fraudulent, and on February 28, 1962 he obtained an order to show cause, including a restraint against defendant's further prosecution of the Nevada suit, made returnable April 13, 1962. The defendant wife was served with this order and complaint by mail in Nevada. She failed to appear in the New Jersey action, and an order was entered therein April 26, 1962 permanently restraining her.
In the meantime, however, a final judgment of divorce was granted the wife in the Nevada action by default on April 3, 1962, the count for annulment therein having been abandoned. Among other things, the Nevada judgment finds the plaintiff therein (defendant here) to be a bona fide resident of Nevada and to have so been for a period of more than six weeks preceding institution of the action. Later plaintiff filed a supplemental complaint demanding invalidation of the Nevada judgment.
Plaintiff testified that on June 26, 1962 he saw defendant at the East 33rd Street Paterson residence of her mother, where she had been residing prior to going to Nevada. Since then he saw her again on occasions in that vicinity. It was also proven that defendant was employed in Paterson from August 20, 1962 to October 17, 1962, and that as of ...