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Foris v. Foris

Decided: October 22, 1968.

MARY FORIS, PLAINTIFF,
v.
NICHOLAS FORIS, DEFENDANT



Horn, J.s.c.

Horn

This is a motion to dismiss on the ground that jurisdiction over defendant is lacking.

Plaintiff brought an action to enjoin her husband from proceeding with his divorce action in the State of Nevada, on the ground that the courts of said state did not have jurisdiction over the subject matter, neither of the parties being domiciled there. Plaintiff never entered an appearance in the foreign action.

A verified complaint and order to show cause containing appropriate restraint were issued and served by registered mail upon defendant in Nevada, pursuant to the terms of said order. He received these papers four days before a

divorce decree in his favor was entered by the Nevada court. He failed to heed the restraint against proceeding with that action on the advice of his Nevada counsel. Defendant returned to New Jersey two days after the decree was handed down.

Defendant cites Meeker v. Meeker, 52 N.J. 59 (1968), as support for his position that the service in Nevada was ineffective. Meeker presents a question as to whether an absent New Jersey domiciliary may be served by registered mail, return receipt requested, as permitted by R.R. 4:96-4 and R.R. 4:4-5, so as to constitute due process upon a defendant in an action enjoining him from obtaining a foreign decree of divorce. That case was an action to obtain a declaratory judgment as to the existence or nonexistence of a marriage.

In Meeker the court stated:

"An action to adjudge the existence or nonexistence of a marital status involves a right personal to the parties. It can be entertained only if there is such service as would support a judgment in personam. To permit resolution of that right by service under R.R. 4:4-5 (service on absent defendants) rather than by personal service under R.R. 4:4-4 would, in our view, amount to a denial of due process."

Defendant relies primarily on this language for his contention that this court never obtained jurisdiction over him.

As demonstrated hereinafter, our decisions have for many years recognized the validity of the kind of service pursued in the present case. Our rules of procedure, as hereinafter shown, were obviously fashioned on the principles enunciated by our case law in recognition of such service outside the State.

However, the quoted language of Meeker is such as reasonably to raise the question of the validity of such service.

R.R. 4:93 to 4:98, inclusive, apply to matrimonial actions. R.R. 4:93-2 defines the term "matrimonial actions" as "all actions brought under the inherent jurisdiction of the court for the ...


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