On appeal from Superior Court, Chancery Division, Union County.
Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[161 NJSuper Page 176] This appeal presents the question of whether, on the facts of this case, plaintiff, who married defendant after obtaining a Mexican divorce from her husband, is barred by existing law from maintaining an action for divorce against defendant based in part on his alleged desertion, or, in the alternative, for separate maintenance. The trial judge issued a letter opinion in which he
concluded that since the Mexican divorce was void, plaintiff was not entitled either to a dissolution of the purported marriage to defendant or to support from him, and judgment was entered accordingly.*fn1 He queried, however, whether "with the more liberal policy toward divorce as evidenced by the Divorce Reform Act, Justice Wachenfeld's dissent in Tonti [ v. Chadwick , 1 N.J. 531 (1949)] should now be the law."
Plaintiff married Jesse L. Liss in 1953 in Brooklyn, New York. They subsequently took up residence in this State. Four sons were born of the marriage, the eldest of whom is now about 17 years of age. By 1969 Liss had left plaintiff and was residing in New York. His requests for a divorce were refused by plaintiff. In February 1969 plaintiff met defendant who, a few months later, proposed marriage. This led to plaintiff's obtaining a Mexican divorce in circumstances that are disputed by the parties.
According to an affidavit filed by plaintiff in the proceedings below, the plan for a Mexican divorce originated with defendant. She stated that he arranged a conference in Newark at the office of his attorney, Milton Yormark, at which she was present along with defendant and Liss. She said that the lawyer assured them that a Mexican divorce would be valid. After consulting with his own attorney in New York, Liss agreed to sign all papers purportedly necessary to confer jurisdiction on the Mexican court. Defendant then made arrangements for plaintiff to go to Mexico, paying all the expenses, and he accompanied her there. A divorce decree was entered on May 27, 1969.
Liss filed a corroborating affidavit in which he confirmed that defendant was interested in seeing to it that there be a divorce as soon as possible. He said further that his own attorney convinced him that Mexican divorces were valid and would be recognized in this country provided that both parties appeared in the Mexican proceedings. Liss also stated that he remarried after plaintiff obtained the divorce decree.
Defendant maintained below in an affidavit that he was approached by Liss and the latter's attorney with respect to the matter and that it was Liss' attorney who made the arrangements for the Mexican divorce. He stated that he accompanied plaintiff to El Paso, and that she was then transported to Mexico, returning later the same morning after the entry of the divorce decree.
Plaintiff and defendant were married in this State on June 18, 1969. They lived together until July 1976, when defendant moved out of the marital residence. For a short time, defendant paid plaintiff $250 a week for her support. The payments were subsequently reduced and finally discontinued.
In October 1976 plaintiff instituted her action for separate maintenance and divorce. Defendant filed an answer in which, among other things, he denied that the parties were married to each other. By way of counterclaim, he sought an annulment of "the alleged marriage" on the ground that plaintiff had obtained a fraudulent Mexican divorce and that her marriage to Liss was still in full force and effect.
Subsequently, a consent order was entered permitting plaintiff to include in her answer to the counterclaim the defenses of estoppel, laches, fraud and unclean hands. Defendant was permitted therein to withdraw his counterclaim and, instead, to incorporate the allegations thereof into the affirmative defenses contained in his answer to the complaint. By another order, plaintiff was awarded pendente lite support in the sum of $155 per week.
It appears that counsel for both parties requested the court to decide on the basis of the pleadings and affidavits on file "whether or not defendant may raise the question of the invalidity of the Mexican divorce." The issue posed by the trial judge in his letter opinion was whether plaintiff would be "permitted a divorce with the equitable distribution and possible alimony which may follow," or whether she would "be unsuccessful because her inability to prove a valid marriage." He did not mention the alternate cause of action for separate maintenance. As indicated above, the trial judge determined that by reason of the void Mexican divorce plaintiff could not be granted the relief sought, despite a strong feeling on his part that ...