On appeal from Superior Court, Chancery Division, Mercer County.
Lynch, Kole and Petrella. The opinion of the court was delivered by Kole, J.A.D.
Plaintiff wife and defendant husband are citizens of Pakistan. The wife and the children of the marriage reside in Pakistan. The husband practices medicine as a psychiatrist in this State, and resides here.
The wife filed an "amended complaint" alleging (1) a subsisting marriage, unjustifiable abandonment by the husband in May 1972 and his refusal adequately to support her and the children, then aged 13, 10 and 1, and seeking separate maintenance, as well as support of the children, and that (2) if the court were to find that defendant was lawfully divorced from her, she should receive alimony and equitable distribution and the children should receive adequate support. The defenses essentially were as follows: (1) the husband already had obtained a valid divorce in accordance with the laws of Pakistan; (2) the Pakistan court had confirmed the divorce, had full jurisdiction to deal with all of the issues, including support, raised in this proceeding and its actions were "dispositive of the matters raised" in the complaint; (3) the husband had met all financial obligations to the wife in accordance with the antenuptial agreement between them and the laws of Pakistan, "the country with jurisdiction over the
parties, the marriage and divorce;" (4) the proper forum for the resolution of the financial needs of the wife is the Pakistan court, "which already has jurisdiction over the parties and the subject matter, and in which there is currently an action pending * * * brought by plaintiff [wife] against defendant [husband];" and (5) the court was without jurisdiction to grant equitable distribution.
The trial judge, in a judgment entered August 12, 1976, under principles of comity refused to recognize the Pakistan divorce and awarded the wife separate maintenance in the sum of $430 a month. Relying on Shikoh v. Murff , 257 F.2d 306 (2 Cir. 1958), he held that the husband's method of obtaining the divorce in the Pakistan consulate in New York, while he resided in New Jersey, rendered it invalid under the laws of New Jersey. Although it is not too clear, apparently the judge also was of the view that Pakistan law, pursuant to which a divorced wife is not entitled to alimony, and the antenuptial agreement, under which the wife's sole property or other financial right was to receive 15,000 rupees ($1,500) from the husband, were so offensive to this State's public policy as to invalidate the divorce and to entitle her to separate maintenance, where, as here, the husband was found to have abandoned her. N.J.S.A. 2A:34-24.
In support of his separate maintenance award, the judge found that the husband was "domiciled in New Jersey" since he "is a resident here * * * has practiced medicine here" in excess of nine years, has a medical license and owns real estate and other property here, and "in every other respect demonstrates an intention not to return to Pakistan but to remain here to enjoy the pleasures" of these assets and "the protection and benefits of our laws and sovereignty." He further found that
The only purposes for which he [the husband] returns to Pakistan * * * are connected with his plan and intention that the plaintiff and his children shall remain in Pakistan, subject there to the lesser benefits and rights and share of his earnings and property which he enforces against them by the judgment he can secure from
the Pakistani courts. He has * * * taken affirmative action to prevent the plaintiff [wife] from coming to reside in this Country, and I feel that in addition to the grounds which I have already detailed that there is an essential injustice in the defendant accepting all the benefits of living in New Jersey and earning a substantial income here while requiring his wife and family to live in Pakistan and be circumscribed by their law which is far less beneficial to them than the American law would be if they were to reside with the husband and father here.
Now, with respect to the application of the * * * [antenuptial] agreement which was in fact entered into between the parties in this case, * * * this is contrary to the public policy of the State of New Jersey. While the State does recognize [such] agreements, it is essentially because there is a freedom of choice between the parties, and if they with full knowledge of their rights and with proper guidance and counselling come to a certain determination to waive or give up rights this certainly may be enforced in the proper case in this State; but, where as here there was no choice given to the plaintiff under the law of Pakistan and the Islamic law, which I do not criticize * * * she had no choice. She had to waive, give up or not claim support or alimony in the event of a divorce, and it cannot be said that with that choice she chose to do it, because there was no choice involved. To that extent it is so clearly contrary to the public policy of this State that I decline to enforce it, and, therefore, I find that it is open to her to prove by proper evidence that she would be entitled to certain support by way of separate maintenance.
Although the judgment awarded separate maintenance to the wife, it denied support for the three children, predicated on the court's asserted lack of authority over support for children beyond its jurisdiction. Indeed, the trial judge refused to take proofs on that issue.
The husband appeals from the separate maintenance award. The wife cross-appeals from the judgment to the extent that it denies support for the children.*fn1
We consider first the separate maintenance award.
We hold that (1) the trial judge erred in refusing to recognize the Pakistan divorce as valid under principles
of comity and, accordingly, he should not have awarded the wife separate maintenance; and (2) the wife was not entitled to equitable distribution or ...