Hartman, J.c.c. (temporarily assigned).
Plaintiff seeks a declaratory judgment that she is still defendant's lawful wife and that an ex parte divorce secured by him in the State of Florida is of no force and effect in New Jersey.
No testimony was offered by either side at the trial. Determination of the issues was based on stipulated facts and the record.
The parties were married in Poland in 1939. They established the matrimonial domicile in New Jersey ten years later and lived here with the three children born of the marriage. On March 29, 1961 the wife instituted an action for separate maintenance against the husband in the Superior Court of New Jersey (Docket M-3519-60). Defendant contested the main action and counter-claimed against the wife for an absolute divorce on the ground of extreme cruelty.
The opposing actions were fully contested and tried, resulting in (1) the entry of a judgment of separate maintenance in favor of the wife, and (2) dismissal of the husband's counterclaim for divorce. Judgment was entered April 5, 1963.
Thereafter defendant moved to Florida. On June 15, 1964 the wife received in the mail a copy of a notice of publication and a copy of a divorce complaint filed against her by the defendant in that state. His Florida complaint was based on extreme cruelty. The wife filed no appearance in the Florida action nor did she participate in it in any way. She did, however, secure at the foot of the original New
Jersey action on July 8, 1964 an order to show cause, including the usual ad interim restraints, why defendant should not be enjoined from pursuing his divorce action in Florida. Despite notice of the restraints, defendant proceeded to secure an ex parte divorce in that state, judgment being entered on July 24, 1964. He then remarried.
Defendant's New Jersey counsel moved for a dismissal of the restraints and the same were vacated by order of this court on December 18, 1964 for the reason that the order to show cause should have been taken in an independent action, not as a supplement to the separate maintenance judgment. A separate complaint was then filed by the wife and the two actions were consolidated.
Defendant filed an answer and raises separate defenses. He contends that he has been a bona fide resident of the State of Florida since March 13, 1963 (23 days before the entry of the New Jersey judgment which dismissed his counterclaim). He also asserts that as a bona fide resident of Florida "he had the right to institute the divorce proceedings therein and the decree granted is valid and must be given full faith and credit by the State of New Jersey."
During the course of counsels' arguments on the date fixed for this hearing, there being no evidence offered to dispute defendant's residence in Florida, nor his animus manendi, I found as a fact that his residence there must be taken as a presumed bona fide one. The burden of disproof was on plaintiff. When a proceeding is brought to attack a sister-state decree of divorce and that attack asserts a fraudulent and pretended residence in the rendering state the burden of proof rests on the party so attacking. The fraud will not be presumed. Peff v. Peff, 2 N.J. 513 (1949); Brown v. Brown, 28 N.J. Super. 165 (App. Div. 1953); Cook v. Cook, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146 (1951). On this point of plaintiff's complaint she has failed, and if this were the only basis for her attack on the validity of the Florida divorce, full faith and credit would be accorded to it.
But the main thrust of plaintiff's attack is that defendant was barred by the doctrine of res judicata from bringing his action in Florida at all. She contends that the dismissal of the defendant's counterclaim for divorce for extreme cruelty in New Jersey was a final adjudication between the parties, and that judgment constituted a bar to a second suit by defendant in New Jersey or elsewhere.
In Reik v. Reik, 101 N.J. Eq. 523 (Ch. 1927), Vice Chancellor Ingersoll held:
"Independent of the full faith and credit clause the general principle recognized by all courts is, that in a subsequent action between the same parties as plaintiff and defendant, involving the same issues as those of a former action, the judgment in the former suit, whether in a domestic or foreign court, is an estoppel as to the issues actually litigated and determined in the first action."
Cromwell v. County of Sac., 94 U.S. 351, 24 L. Ed. 195 (1876); 2 Black on Judgments, § 610; Lazier v. Westcott, 26 N.Y. 146, 151 (Ct. App. 1862).
Defendant argues that his proceeding for divorce on the ground of extreme cruelty in Florida is a different cause of action than his dismissed counterclaim for divorce in New Jersey brought here on the ground of extreme cruelty. This is posited on the theory that the degree of proof required under the Florida statute authorizing divorce relief for extreme cruelty differs from the requirements of proof of the same ground under our own statute. He contends, further, that the wife has the burden of demonstrating the similarity of the testimony, and that she has failed to do so. I have examined the Florida statute governing extreme cruelty as a ground for divorce and the proof required in that state to warrant a judgment, and compared them with our own. There is no substantial difference between the two states.
"Extreme cruelty by defendant to complainant" is the fourth ground for divorce prescribed in 5 Fla. Stat. Ann., § 65.04. In Riehl v. Riehl, 60 So. 2 d 35 ...