Dreier, J.c.c., Temporarily Assigned.
This is a matrimonial action in which plaintiff husband seeks to enforce an Ohio divorce decree awarding him title to real property located in New Jersey. Defendant wife, in turn, counterclaims for a judgment declaring her to be vested with sole title to the property and declaring the Ohio decree null and void insofar as it purports to affect the New Jersey realty. Defendant moves for summary judgment, and this court has viewed the facts asserted in the light most favorable to plaintiff. Judson v. Peoples Bank & Trust Co. , 17 N.J. 67 (1954).
The parties were married on May 1, 1954. On February 7, 1957 they acquired title as tenants by the entireties to property commonly known as 71 West End Avenue, Summit, New Jersey. Sometime during the marriage the parties also acquired title to real property in Pennsylvania.
Both parties agree that plaintiff experienced a severe financial difficulty arising from the many gambling debts he incurred. At various times defendant advanced money to him to pay these debts, in exchange for his promissory notes, none of which has been repaid. On January 1, 1969 plaintiff, under the weight of his financial problems, conveyed to defendant
all of his right, title and interest in the Summit real estate, which the parties subsequently remortgaged. At about this time plaintiff also conveyed exclusive title to the Pennsylvania realty to defendant.
On August 10, 1973 plaintiff filed a voluntary petition for bankruptcy in United States District Court. On schedule B-1 he answered "none" to real estate owned or held by him. On schedule B-4 he answered "none" to interest in land. Both parties testified before the referee in bankruptcy on October 3, 1973 that defendant was the sole owner of the Summit realty and that plaintiff had irrevocably conveyed all of his right, title and interest to the property in the 1969 deed. Plaintiff was ultimately adjudicated a bankrupt and discharged.
The parties separated in March 1974. Plaintiff then moved to Ohio and in May 1974 defendant moved to Sweden, where she has remained except for a brief period in January 1976 when she visited plaintiff in Ohio and discussed the possibility of divorce. Plaintiff asserts (and for the purpose of this motion this court must accept) that during this visit defendant promised to give him one-half of the value of the New Jersey property after deducting the value of the still outstanding promissory notes.
On July 20, 1976 plaintiff filed suit for divorce in the Court of Common Pleas, Summit County, Ohio. A copy of both the complaint and summons was mailed to defendant in Sweden. She neither answered the summons nor participated in the Ohio divorce action in any manner.
The parties were divorced by an Ohio judgment on October 20, 1976, at which time defendant was awarded the Pennsylvania property and all interest in the Summit property was awarded to plaintiff under the direction that
No transcript was made of the divorce proceedings.
As noted at the outset, plaintiff instituted this action to enforce the Ohio judgment, defendant filing a counterclaim to declare her to have sole title to the Summit realty. Given the acknowledged state of facts, the matter is ripe for summary judgment.
The threshold question is the effect of that part of the Ohio decree which purports to distribute the real property acquired during the marriage. The Ohio divorce itself is valid, since plaintiff was an Ohio domiciliary. Williams v. North Carolina , 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942); Woliner v. Woliner , 132 N.J. Super. 216 (App. Div. 1975). However, the Ohio court could not distribute property located outside its boundaries, or enforce such distribution, without relying on such in personam jurisdiction as it might have over defendant. Higginbotham v. Higginbotham , 92 N.J. Super. 18 (App. Div. 1966); Vanderbilt v. Vanderbilt , 354 U.S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456 (1957); Bullock v. Bullock , 52 N.J. Eq. 561 (E. & A. 1894). Since the marital res had never existed in Ohio, and since defendant resided in Sweden at the time the complaint was filed and served on her by regular mail, and since she never responded to the summons, the Ohio court did not have the requisite personal ...