For affirmance -- Chief Justice Weintraub and Justices Hall, Schettino and Haneman. For reversal -- Justices Francis and Proctor. Francis, J. (dissenting). Proctor, J., concurs in this opinion.
[52 NJ Page 546] We granted certification, 51 N.J. 273 (1968), to review the judgment of the Appellate Division entered on its opinion reported in 98 N.J. Super. 274 (App. Div. 1967). We affirm substantially on that opinion, but add a few words in the light of the dissenting opinion in our Court.
That Florida had jurisdiction of the marital res is not disputed; when the husband sued for and obtained the divorce, he was (and in fact still is) a bona fide domiciliary of that State. Hence, under controlling decisions of the United States Supreme Court, the Florida judgment is entitled to full faith and credit as to marital status unless something removes this case from the usual rule. The wife says her situation constitutes a reasonable exception. We think it does not, and find no precedent to support her.
The earlier judgment obtained by the wife in her separate maintenance proceeding in New Jersey of course did not purport to bar a later dissolution of the marriage. It merely adjudged that she receive support, and the later Florida decree of divorce obtained by the husband did not disturb that judgment. The wife's right to support under the New Jersey judgment remains undiminished. Indeed, it is not suggested the separate maintenance judgment should bar full faith and credit to the Florida judgment of divorce. Rather that result is said to follow from the circumstance that the husband had sought unsuccessfully to obtain a divorce in New Jersey by a counterclaim in the separate maintenance suit upon what seems to be the same "ground" on which he later succeeded in Florida.
There is no conflict at all between the operative portions of the judgments with respect to the marital status of the parties. Florida did not challenge any adjudication, express or implied, that the parties were husband and wife as of the time of the New Jersey judgment. Florida granted a divorce as of a later date, and did so upon a cause it found sufficient under Florida law. Nonetheless the wife says that if the husband's second suit had been brought in New Jersey, her plea of res judicata would have prevailed, and for that reason Florida's judgment should be refused full faith and credit. But the existence under our law of a defense against the Florida cause of action -- even one which would have prevailed if proffered to the Florida court, see Annotation, 4 A.L.R. 2 d 107 (1949) -- does not justify a refusal of full
faith and credit to its judgment insofar as it decrees the dissolution of the marital status. We should not review the merits of the Florida judgment under its laws or under ours.
The wife's plight was really not worsened because the husband had defended her New Jersey action or because he had tried unsuccessfully to obtain a divorce here. The wife's grievance is no different from that of every other wife whose husband moves his domicile to another State and there severs the marital knot. Every such wife, who may indeed be "impoverished" as the dissent hypothesizes, is faced with the heavy burden of meeting the husband in a distant State which, indeed, may recognize grounds for divorce as to which she has no defense at all. We are not happy about this scene, but we have no solution better than the "divisible" divorce concept evolved by the United States Supreme Court. In any event, that concept is binding upon us, and we see no point in seeking minute exceptions which do not offer an answer to the underlying problem.
The "divisible" divorce concept was devised to end the interstate turmoil over marital status but without depriving the wife of her right to support if the judgment of divorce was entered without personal jurisdiction of her. The exception we are asked to make would merely revive some of the uncertainty. The present parties would be man and wife in New Jersey where the wife lives but divorced in Florida where the husband resides, while other States, if the occasion should arise, would have to choose between two incompatible judgments with respect to marital status.
Florida's jurisdiction to act with respect to the marital status being undisputed, the sounder course is to recognize Florida's judgment of divorce. We repeat that to do so does not depreciate in the least the terms of the earlier New Jersey judgment. The Florida judgment does not question the New Jersey support order, and insofar as the New Jersey judgment may be said to be a continuing adjudication that as of its date the husband was not entitled to a divorce under the New Jersey law, again the Florida judgment does not
collide with that adjudication, for Florida granted a divorce as of a later date and did so under Florida law and not under New Jersey law. That Florida might have denied the divorce if the action had been defended or that the action would have failed if brought in our courts, is not relevant. The full faith and credit clause does not permit such a review of the merits of a foreign divorce judgment.
FRANCIS, J. (dissenting). The parties to this action were married in 1939. In 1949 they settled in New Jersey. Three children born of the marriage lived with them in this State. They cohabited here as husband and wife until January 1961 when the husband left his wife. Thereafter, alleging abandonment, she instituted suit for separate maintenance for herself and their three minor children. Kram was still living in New Jersey and was served personally in the proceeding. He appeared and filed an answer denying the abandonment. He also filed a counterclaim seeking an absolute divorce on the ground of extreme cruelty, the details of which he particularized as required by our practice. The case was fully tried and on April 5, 1963 resulted in; (1) a judgment that Kram had abandoned his wife without justifiable cause, (2) a judgment that on the evidence ...