Hartman, J.c.c. (temporarily assigned).
Plaintiff sues to partition real estate, the former matrimonial home of the parties. Defendant, his former wife, seeks to prevent it. The central question to be decided is whether plaintiff's unilaterally undertaken obligations regarding use and occupation of the home by defendant and the child, entered in his ex parte Nevada divorce proceedings on his own motion, constitute a waiver of his right to partition or estop him from asserting that claim. I find no case directly in point.
The relevant facts are not in dispute. The parties met sometime in the late summer or early fall of 1958. Each had been married and divorced, and each had two children by the former marriages. They were married on July 2, 1959. Defendant sold her Florida property (granted to her in her prior Florida divorce proceedings) and applied the proceeds of that sale to the purchase of a home in Montclair.
In 1963 their Montclair home was sold and the appreciated net proceeds were used to purchase 34 Maple Drive in North Caldwell, as tenants by the entirety. This is the matrimonial home which plaintiff now seeks to partition. It is presently being occupied by defendant, her 18-year-old youngest son by her first marriage, and Margot, the only child of this marriage, now eight years of age.
Defendant's answer alleges that plaintiff deserted her in June 1965. There is nothing before the court to indicate how she got along for the following two years. In any event, he filed an action for divorce against defendant in Clark County, Nevada, in 1967. Service of that complaint was made on defendant in New Jersey on February 9, 1967. Defendant filed no appearance in the action nor did she participate in the Nevada proceedings in any manner. On March 3, 1967 "defendant not being present personally, and not being represented by counsel or any other person," the Nevada district judge granted plaintiff an absolute divorce on the ground of "extreme cruelty, mental in nature."
In view of the issue before this court, the findings of the Nevada judge and his adjudications are set forth as follows:
1. That for a period longer than six weeks immediately preceding the verification of said complaint, plaintiff has been and still is, an actual bona fide resident of the State of Nevada.
2. That plaintiff and defendant intermarried at Montclair, New Jersey, on or about July 2, 1959, and ever since have been and still are, husband and wife.
3. That there is one minor child the issue of said marriage, to wit: MARGOT, born September 1, 1962; that plaintiff is willing and able to pay to defendant the sum of $100.00 per month for the support and maintenance of said child until she reaches the age of majority so long as he is accorded reasonable visitation rights with said daughter.
4. That plaintiff is willing to be required to pay monthly mortgage payments, property taxes and property insurance on the jointly owned property of the parties, located at 34 Maple Drive, North Caldwell, New Jersey, so long as he retains an interest therein and so long as the defendant does not remarry and continues to live in said residence with said daughter.
5. That plaintiff is ready to be required to pay to defendant as and for alimony the reasonable monthly sum of $180.00 so long as she does
not remarry; and, in the event that plaintiff is no longer required to make payments on the residence at 34 Maple Drive, then said alimony shall be increased by the monthly sum of $160.00, making a ...