Sullivan, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant appeals from a judgment entered in the Chancery Division which awarded plaintiff custody of their four-year-old child and dismissed defendant's counterclaim for custody. The judgment also denied plaintiff's application to restrain defendant from proceeding with a divorce action she had instituted against plaintiff in Illinois.
The parties were married in Yonkers, New York, on February 6, 1965. They lived for a short period of time in New Jersey where John Vannucchi, the only child of the marriage, was born on July 26, 1965. In September 1966 they moved to Chicago where a family residence was maintained. In the fall of 1967 marital difficulties arose between the parties. In September and on December 31, 1967 plaintiff allegedly beat his wife, and thereafter she conferred with an attorney concerning the institution of proceedings for divorce. On January 7, 1968 plaintiff left Chicago and went to his parents' home in New Jersey, taking the child with him. He returned the child to the mother in Chicago on March 9, 1968.
In January 1968 defendant brought proceedings in Illinois for divorce on the ground of extreme cruelty and for custody of the child. Plaintiff entered a general appearance and subsequently filed an answer in which he denied the allegations of the complaint, other than the fact of marriage and birth of the child, and asserted an affirmative defense of condonation.
In June 1968 plaintiff, with defendant's consent, brought the child to New Jersey to visit the child's grandparents. However, plaintiff thereafter did not return the child to the mother as agreed. On September 5, 1968 plaintiff filed
his present complaint in the Chancery Division seeking custody of the child and a judgment restraining defendant from proceeding with her divorce action. He secured an order to show cause with an ad interim restraint, which was served upon defendant on September 12. On September 18, 1968, following a contested hearing, the Illinois court awarded temporary custody of the child to his mother, directed plaintiff herein to return the child forthwith, enjoined him from proceeding in any other jurisdiction, and awarded the mother alimony pendente lite.
On October 11, 1968, the return day of the order to show cause in the New Jersey action, defendant did not appear. A default judgment was entered which awarded custody of the child to the father, permanently enjoined the mother from proceeding with her matrimonial action in Illinois, and adjudged her to be in contempt of court. Defendant's motion to vacate the default judgment was denied, and she appealed. On June 16, 1969 this court reversed the judgment of the Chancery Division and remanded the case, directing the trial court to permit defendant to file such pleadings as she deemed appropriate, to hear testimony and make specific findings of fact and conclusions of law as to whether New Jersey should entertain the plaintiff's suit in the light of the circumstances of the case and, if so, to whom custody of the child should be awarded.
Defendant thereafter filed her answer and counterclaim in which she alleged that the parties were residents and domiciliaries of Illinois; that New Jersey courts lacked jurisdiction over the persons of defendant, the infant child of the marriage and the subject matter of the litigation; that proceedings for divorce and custody of the child were pending in Illinois, to which plaintiff had entered a general appearance, and that the Illinois court had awarded temporary custody of the child to defendant and ordered plaintiff to return the child. Defendant sought a judgment dismissing the complaint, awarding her custody of the child and ordering plaintiff to deliver custody to her in Illinois.
At the conclusion of an 11-day trial the trial judge awarded custody of the child to plaintiff but denied plaintiff's action to restrain defendant from proceeding with the divorce action in Illinois. He dismissed defendant's counterclaim for custody. In reaching his decision the judge held that, notwithstanding the order of the Illinois court awarding temporary custody of the child to defendant, the court had jurisdiction to determine the issue of custody under the parens patriae doctrine; that the intent of plaintiff was to continue New Jersey as his domicile, and the child was likewise domiciled here; that jurisdiction of the New Jersey court as to custody was not abrogated because service in the Illinois divorce proceeding was made on plaintiff in this State while the child was physically present in Illinois, nor by the order of the Illinois court granting temporary custody to the mother pending the divorce hearing. The judge further implicitly found that defendant was an unfit person to have custody of her child and that its best interests would be served by awarding custody to the father. Defendant appealed.
At oral argument we were informed that the Illinois court, following a contested hearing, had granted defendant a final decree of divorce. The decree, entered on February 8, 1970, provided that the issue of custody would be reserved for future consideration of that court following the determination of this appeal.
Defendant first argues that the Chancery Division lacked jurisdiction to determine the issue of custody because the Illinois court had prior jurisdiction over the parties and subject matter; that its orders are entitled to full faith and credit in New Jersey, and that the Illinois court's order of custody is res judicata. Alternatively, defendant argues that the Chancery Division should have declined to accept jurisdiction under the circumstances of this case; that it should not have invoked the doctrine of parens ...