Matthews, Seidman and Horn. The opinion of the court was delivered by Horn, J.A.D.
Defendant Regone Pierrakos is the former wife of plaintiff John Pierrakos. She appeals from a summary judgment entered in the trial court dismissing her answer and counterclaim and directing the partition of the former marital domicile of the parties.
As will be seen from the following recital, the focal question is whether defendant is entitled to equitable distribution as to the residence formerly occupied by them in Monmouth Beach, New Jersey. The trial judge, in granting judgment
for plaintiff, decided as a matter of law that she was not so entitled.
The parties were married in 1950 or 1954.*fn1 Two children were born of the marriage, both of whom are now over 18 years of age. In 1958 the parties purchased the subject house and lot as tenants by the entirety and it served as their home until August 1969, when plaintiff, a practicing psychiatrist, moved to New York City where he presently resides and practices his profession. Defendant continued to reside and still resides in said house.
In December 1970 plaintiff instituted an action for divorce in the Supreme Court of the State of New York. Defendant was personally served with a summons in New Jersey. Then followed a series of proceedings in that action which, according to affidavits of defendant and her New York attorney, resulted in an unjustifiable judgment of divorce by default against defendant. It would serve no useful purpose to review the alleged proceedings, because efforts to reopen the default judgment were pursued in the courts of New York without success. We are not at liberty to disregard their determinations. However, personal jurisdiction over defendant was achieved in those proceedings. On January 17, 1972, following an uncontested hearing plaintiff recovered the judgment of divorce in New York on the ground that defendant's treatment of plaintiff was "cruel and inhuman" and "without just cause or provocation." That judgment additionally provided for joint custody of the children as well as the amount to be paid by plaintiff for their support and maintenance.
An examination of the transcript of the divorce hearing, singularly notable for plaintiff's minimally required responses
to leading questions propounded by his attorney, discloses that there was no mention of the needs of the children as a basis for the amount of their support and no mention of the marital premises or any other item concerned with the marriage. While the proceedings instituted by plaintiff in New York were pending, defendant instituted an action in the Chancery Division of the New Jersey Superior Court for a divorce. This action was subsequently dismissed on plaintiff's motion because of the earlier acquired jurisdiction of the Supreme Court of the State of New York.
In June 1975, about 2 1/2 years after the divorce judgment in New York, defendant filed a complaint for equitable distribution of the former marital domicile. An attempt to serve a copy of the complaint and summons upon plaintiff was unsuccessful, information having been furnished by the office of the Sheriff of New York County "defendant is avoiding service and would not make himself available for service of process."
Shortly thereafter plaintiff initiated the instant action for partition of the marital home. Defendant then filed an answer and counterclaim by which, in addition to other relief, she sought equitable distribution of the premises and consolidation of her action for equitable distribution with that of her former husband for partition. After hearing argument the ...