Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant wife appeals and plaintiff husband cross-appeals from a Chancery Division judgment determining the respective rights of the parties after the wife had obtained an ex parte divorce in Nevada, the husband not having been personally served and not having answered or appeared. The main issues concern the custody of the three younger children of the marriage, alimony and support.
Since defendant relies upon the applicability of the full faith and credit clause to the Nevada judgment, and because of our determination of the custody and alimony issues, some detailing of the background facts is necessary.
The parties were married in 1945 and lived together in New Jersey until defendant left at the end of 1961. Five children were born of the marriage: Nancy (1946), Albert (1948), Christopher (1951), William (1953), and Sally (July 21, 1961). The marriage was apparently uneventful until February 1961 when defendant sought psychiatric help from Dr. Roland Roecker. Her complaint was that her husband was mentally ill. As a result, Dr. Roecker also saw plaintiff and came to the conclusion that it was the wife who was mentally ill and not the husband. His diagnosis was that defendant was suffering from paranoia schizophrenia. In August 1961 she came under the care of another psychiatrist, Dr. Richard W. Taylor. He arrived at the same diagnosis, as did his wife, Dr. Joan K. Taylor, a clinical psychologist.
In July 1961 defendant had asked her husband to sign papers she had prepared and which provided that she would leave with the children if he would give her a small amount of money. She pressed this proposal for almost a month, but he refused to sign. After the birth of the last child, Sally, on July 21, 1961 defendant left by automobile for a month's trip, taking the newly born infant with her to Bucks County
in Pennsylvania, Boston, Lake Champlain, back to Boston, and then home to New Jersey.
Thereafter, in September 1961, defendant's then attorney held a conference at which defendant, her father, plaintiff and a stenographer were present. The discussion centered upon the living arrangements of the parties while the wife underwent psychiatric therapy. It was concluded that plaintiff would leave the marital home in Short Hills, but would continue his pediatric practice in the office part of the house. This temporary arrangement had been suggested by Dr. Roecker for the benefit of the wife, and this with the approval of Dr. Richard Taylor. Plaintiff reluctantly accepted the arrangement and went to live with his parents in nearby Millburn, while the five children stayed with their mother. After about a month defendant sent Nancy, the oldest child, to live with plaintiff. Then, in mid-November, she sent the oldest boy, Albert, to California, despite plaintiff's objections.
It was at about this time that defendant decided to discontinue her course of treatments with Dr. Richard Taylor. Soon after, in early December, defendant told her husband that if he were successful in obtaining the children, she would kill them all. It was during this period that plaintiff observed his wife sitting in the living room of the house with a gun across her lap. He later found the gun, a loaded .22 rifle, in her room, removed the bolt to render it inoperable, and left the bolt with the Millburn police. His wife repeatedly thereafter asked for the return of the bolt; she even wrote him for it in February 1962, after she had left New Jersey.
About Christmas 1961 plaintiff moved back into the matrimonial home, informing defendant that he had returned to resume a normal family life. Her reply was that she would not live there with him, and if he insisted on remaining in the home she would live in the office. She proceeded to carry out her threat, moving plaintiff's office equipment into the living quarters of the home, her bedroom furniture into the office, and the kitchen equipment into the laboratory. The situation, described as "chaos" by a mutual friend, made it impossible
for plaintiff to carry on his practice. After one night in the house he had to move out. Two days later, on December 29, without warning or consultation with her husband, defendant left the marital home and the State, taking the three younger children with her.
For about three months after his wife's departure plaintiff had no knowledge of her whereabouts. He would write her, but always through a forwarding address which would shift between her brother's address in Pittsburgh, Pennsylvania, and her sister's address in Lafayette, California. Plaintiff first learned that she was in Nevada in March 1962, when he was served with papers in a divorce action she had instituted in that state. He and the oldest child, Nancy, had meantime moved back into the Short Hills home on January 5, 1962. Shortly thereafter, and at the request of his son Albert, plaintiff flew to California and brought the boy back to live with him.
Defendant described her own activities during these months as follows. In November 1961 she bought a new car although her husband had refused consent, paying for it with borrowed money and later repaying the loan by selling stock which belonged to both parties jointly. Before leaving New Jersey in this car she had already come to a tentative decision to make Nevada her home. She chose that state because "I wanted to live under the laws of Nevada"; she thought Nevada would be "fair" to her with respect to getting a divorce and custody of the children. Her plan was to go to Pittsburgh first for two or three weeks, which she did, placing the children in school there. She then took them out of school and went to California for a weekend. From there she took the children to Reno for a few days, and then to Carson City, Nevada, where they all lived for some six months under the assumed name of "Sanderson." She said her reason for the assumed name was to forestall "kidnapping." It was during this Carson City period that the parties exchanged correspondence through the wife's Pittsburgh and California forwarding addresses. In his letters plaintiff expressed his continuing affection for defendant
and assured her that the Short Hills home was open for her return. She wrote that she would not return.
Soon after defendant had left the marital home, and on January 15, 1962, plaintiff instituted the present action for custody and an accounting. This was before defendant instituted her Nevada divorce proceedings. Upon learning of defendant's whereabouts by reason of having been served with the Nevada divorce papers, plaintiff filed an amended complaint on March 28, 1962, adding a count for injunctive relief to restrain his wife from further legal proceedings in Nevada affecting the marriage or custody of the children. He also obtained an order to show cause returnable April 12, containing a temporary restraint. Defendant was served with this order in Nevada on April 2, 1962, the very day she obtained an ex parte divorce decree from the Nevada court. (Although she testified that the paper was served some hours after the decree, we have nothing more than her word in support.) A pendente lite order to the same effect as the restraining order of March 28 was entered in this proceeding on April 12, 1962 and served on defendant in Nevada on May 8 following.
A further order, directing defendant to show cause why plaintiff should not be granted custody of the three younger children pending final hearing, was issued on April 23 and served on defendant in Nevada on May 8. The order temporarily awarded custody of the three children to plaintiff. This relief was continued pendente lite on May 17, 1962. Although defendant received a copy of the latter order by mail in Nevada later that month, and was personally served with it in New Jersey in February 1963 when she appeared at the Chancery Division hearing, she never complied with the order.
It was not until November 5, 1962 that defendant appeared in this proceeding and was permitted to file an answer and counterclaim seeking a declaration of the validity of her Nevada divorce, support for herself and the three younger children, custody of the two older children, and certain other
relief with respect to property. (Her claim for custody of the two older children was abandoned during the trial.)
The matter came on for full hearing before the Chancery Division judge in February and March 1963. At the outset of the trial plaintiff moved that defendant be held in contempt for failure to comply with the custody order of May 17, 1962. Following the hearing the trial judge rendered an extensive oral opinion. Final judgment thereon was entered April 24, 1963, determining, among other things, that
(1) Defendant's Nevada divorce was entitled to full faith and credit "insofar as it effects the dissolution of the marriage of the parties."
(2) The Chancery Division had jurisdiction of the issue of custody of the three younger children, and awarded custody to defendant.
(3) Plaintiff was to pay defendant $300 monthly alimony for herself, and support of $150 a month for each of the three children in her custody.
(4) Defendant was not entitled to retroactive support and alimony in the approximate amount of $13,500.
(5) Defendant was not entitled to ownership of two Arabian horses allegedly given her by plaintiff.
(6) Plaintiff was to have visitation rights with the three younger children during the summer vacation months, he to determine the time and place for such visits and to furnish the means of transportation; and defendant was to have liberal visitation rights with the two older children.
(7) Plaintiff's motion to hold defendant in contempt for failure to comply with the May 17, 1962 custody order should be denied.
Defendant appealed from those parts of the final judgment which determined that the Chancery Division had jurisdiction of the issue of custody of the three younger children, and fixed plaintiff's visitation rights. She subsequently amended her notice of appeal to challenge the adequacy of the alimony and support allowed, the denial of her claim to reimbursement of the $13,500, and the determination regarding the Arabian horses. Plaintiff, in turn, cross-appealed from those parts of the judgment which accorded full faith and credit to the Nevada divorce, granted defendant custody of the three younger children, awarded alimony and support, and denied his motion to hold defendant in contempt for failure to comply with the May 17, 1962 custody order.
Plaintiff has abandoned his appeal from the determination according full faith and credit to Nevada's ex parte dissolution of the marriage because he finds himself unable to dispute the sufficiency of defendant's residence in that state to accomplish that limited result.
On June 14, 1963 this court, on plaintiff's application, entered an order staying so much of the final judgment as awarded defendant alimony, pending determination of the appeal and cross-appeal.
On July 26, 1963 the Chancery Division adjudged defendant in contempt for failure to comply with the visitation provisions of the final judgment, and suspended the award of alimony and support until such time as she purged herself ...