On certification to the Superior Court, Appellate Division, whose opinion is reported at 161 N.J. Super. 174 (1978).
For reversal and remand -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Handler, J.
[81 NJ Page 86] This case presents the question whether the plaintiff, who obtained a presumably void or voidable Mexican divorce from her first husband, should be allowed to maintain a matrimonial action against her present husband for divorce, alimony and equitable distribution or, alternatively, for separate maintenance. The circumstances reveal that defendant participated in plaintiff's decision to obtain a Mexican divorce from her former husband, and, following that divorce, defendant and plaintiff married and lived together for seven years, apparently believing themselves to be husband and wife. In Tonti v. Chadwick, 1 N.J. 531
(1949), the Court was presented with the same question under comparable circumstances and denied relief. We no longer find persuasive the reasoning of our earlier decision and decline to follow it. We rule in this case that the plaintiff is entitled to assert her matrimonial claims.
Plaintiff, Clara Kazin, was first married to Jesse Lawrence Liss on October 10, 1953. They had four children. Sometime prior to 1969, Liss left Clara and their children to live with another woman. Clara steadfastly refused to give him a divorce. In February of 1969, Clara met Michael Kazin, the defendant in this action, and shortly thereafter Michael proposed marriage. This led to Clara's obtaining a Mexican divorce from Liss on May 27, 1969. Less than one month later, on June 18, 1969, Clara and Michael married in this State and lived together until July 1976, when defendant moved out of their home.
In October 1976 plaintiff instituted an action for divorce on grounds of extreme cruelty and desertion and, by later amendment, adultery, seeking alimony and equitable distribution; in the alternative, she sought separate maintenance. Defendant filed an answer in which he denied that the parties were validly married to each other. He also counterclaimed for a judgment that the purported marriage between the parties was null and void on grounds that plaintiff's Mexican divorce was invalid and that her prior marriage was still in force. These allegations were reiterated as an affirmative defense after defendant was allowed by consent order to withdraw his counterclaim. Plaintiff was permitted by the same consent order, without the necessity of a formal reply, to continue to assert her previous defenses to the counterclaim, namely, estoppel, laches, fraud and unclean hands.
According to plaintiff, the plan to obtain a Mexican divorce originated with defendant, who arranged for a meeting of all interested parties, Clara, Liss, and himself, in the Newark law offices of his attorney. The attorney assured the parties that a
Mexican divorce was perfectly legal. The parties also discussed Liss' support obligations. Based on Michael's promise to marry her and to provide for everything, plaintiff did not request support from Liss and agreed to accept minimal support for her four sons (with no provision for their college education). Liss agreed to sign all papers which he and his attorney believed were sufficient to confer jurisdiction on the Mexican court. Defendant then made all the arrangements for plaintiff to go to Mexico, paid all her expenses, and personally accompanied her there. Liss generally corroborated plaintiff's version of the circumstances surrounding the Mexican divorce. He stated that the Mexican divorce was defendant's idea and defendant wanted plaintiff to be divorced as soon as possible and had promised that he would take care of the children. Liss was assured by his own attorney that the Mexican divorce would be valid. Kazin's version of these events is somewhat different. He insisted that he was approached by Liss with respect to the Mexican divorce and that it was Liss' attorney rather than his who made the arrangements. He further maintained that he accompanied plaintiff only as far as El Paso, Texas, rather than to Mexico. It is clear that all of the parties relied upon the validity of the Mexican divorce. Following that divorce, Clara and Michael married and lived together as husband and wife for seven years. Liss also remarried and presently has two children from this union.
On cross-motions, the parties requested the trial court to decide on the pleadings and affidavits "whether or not defendant may raise the question of the invalidity of the Mexican divorce." The trial judge concluded, on the basis of Tonti v. Chadwick, supra, that defendant was estopped from affirmatively asserting the invalidity of plaintiff's Mexican divorce, but that since the divorce was void, plaintiff could not prove a valid marriage and therefore was not entitled to either dissolution or support from defendant. On appeals by both parties, the Appellate Division upheld the judgment of the trial court, dismissing plaintiff's complaint. The court ruled in a reported decision, 161
N.J. Super. 174 (1978), that the Mexican divorce decree in this case was utterly void for want of jurisdiction and, for this reason, aside from estoppel, plaintiff could not prove a valid marriage to defendant and was not entitled to relief.
We are now enjoined to reexamine Tonti v. Chadwick, supra. In that case, Virginia Chadwick married Divo Tonti after having obtained an invalid Mexican mail order divorce from one Charles Chadwick. Divo later sued Virginia for an annulment, alleging that Virginia's Mexican mail order divorce was void for want of jurisdiction and, consequently, their marriage was bigamous and void. Virginia counterclaimed for separate maintenance. The Court rejected the claims of both parties. Tonti was not entitled to a judgment of nullity because he had good reason to know that defendant's decree of divorce from her first marriage was of questionable validity. Hence, "unclean hands" prevented him from challenging his wife's prior invalid divorce and receiving an annulment as affirmative relief. The Court also rejected the wife's counterclaim for affirmative relief in the form of separate maintenance. In this procedural context the Court, using somewhat different reasoning, refused to permit the wife to assert an estoppel against Tonti to challenge the invalid Mexican divorce. 1 N.J. at 537. It was stated that "[to] apply the principle of estoppel" so as to allow an action for separate maintenance when a marriage was void in essence would be to recognize a void marriage as a valid one. The effect would be "to place in the hands of the parties the opportunity and the means of frustrating the policy of our own statute which puts the dissolution of the marriage status beyond the control of the parties * * *." Id. The anomaly of this result influenced Justice Wachenfeld to dissent in ...