For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Goldmann, J. (temporarily assigned).
[52 NJ Page 61] This appeal challenges the rule laid down in Floyd v. Floyd, 95 N.J. Eq. 661
(E. & A. 1924), and Morrissey v. Morrissey, 1 N.J. 448 (1949), that our courts will not entertain a direct attack on the validity of a foreign divorce decree when, at the time the decree was rendered, neither spouse was a resident of this State.
Plaintiff, a bona fide resident of New Jersey, brought a declaratory judgment action in the Chancery Division seeking to have her marital status clarified and her husband's ex parte Mexican divorce declared invalid, joining him and his putative second wife, Aileen Lumley (Meeker), as defendants. They moved to dismiss the complaint for lack of jurisdiction over their persons and the subject matter of the action. The trial judge, applying the Floyd-Morrissey rule, granted the motion on the latter ground. The order was affirmed by the Appellate Division in a per curiam opinion.
In her appeal to this court plaintiff argues that application of the rule deprives her of due process, equal protection of the law, and the privileges and immunities guaranteed under the United States Constitution. Defendant moved to dismiss the appeal and decision thereon was reserved pending full argument.
The following facts are culled from the allegations contained in the complaint and affidavits filed by the parties.
Plaintiff and defendant Lincoln Voght Meeker, both then domiciled in India, were married in Bombay in July 1944. A son was born in November 1945. On August 8, 1950 the Meekers, then residing in Manila, P.I., entered into a separation agreement which obligated Meeker to support plaintiff and the son. The agreement provided that
"The Husband and the Wife shall continue to live separate and apart from each other, free from any interference, restraint and control by the other as fully as if she or he were sole and unmarried. For the rest of their lives neither party shall molest or interfere with the other in any way or seek to compel the other to cohabit with
him or her, or restrict or influence the free choice of domicile by the other."
Plaintiff was to have custody of the boy until he attained his majority.
It appears that plaintiff returned to Bombay and eventually became domiciled in London, England. Meeker continued to live in Manila and alleges that he later was domiciled in Singapore. The couple continued to live apart until the fall of 1957 when they were temporarily reconciled in London. Meeker left London in October 1957, promising to return in January 1958. He did not do so. Instead, he instituted divorce proceedings in the State of Chihuahua, Mexico. His residence or domicile in the interim is unclear.
Plaintiff was never served with process or notice of any kind in the Mexican divorce proceedings. She did not participate in them or submit to the jurisdiction of the Mexican court. Meeker obtained his divorce decree on March 17, 1958. On the very same day he married defendant Aileen Lumley in Arizona.
Meeker and his bride moved to Rio de Janeiro, Brazil, arriving there April 28, 1958. Plaintiff came to New Jersey from London in the fall of 1958, and has resided here ever since.
In her complaint and supporting affidavit plaintiff alleged that Meeker's legal residence at the time of the 1958 Mexican divorce proceeding was and continued to be the Williamsburg Apartments in Westfield, N.J., where his mother has lived since April 1958. Plaintiff represented that defendant had declared that place to be his legal residence when he applied to the United States Consul General at Sao Paulo, Brazil, to be registered as a United States citizen. Further, in his application to the New Jersey Director of Motor Vehicles for a driver's license in April 1958 he had certified that he resided at the Williamsburg Apartments -- a representation he repeated when he renewed his driver's license in March 1961 and again in March 1964.
Defendants, on the other hand, presented several affidavits from themselves and others indicating that at no time was either of them ...