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Newburgh v. Arrigo

Decided: February 23, 1982.


On certification to the Superior Court, Appellate Division.

For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. Opposed -- None. The opinion of the Court was delivered by Pollock, J. Pashman, J., concurring. Handler, J., concurring. Pashman and Handler, JJ., concurring in the result.


This case concerns a dispute about the distribution of the proceeds of a settlement of a claim for the wrongful death of Melvin H. Newburgh. The defendants, who are not involved in the dispute, are charged with causing Melvin's wrongful death in an automobile accident. The claimants are Melvin's widow, Joan, and his son by a prior marriage, Steven. Joan, like Melvin, had been married previously. In 1962 she obtained an uncontested divorce in Mexico from her first husband. Steven contends that the Mexican divorce is invalid and that Joan was not legally married to Melvin. Consequently, Steven urges that Joan should not share in the distribution. The primary issue is whether the arguable invalidity of a foreign divorce is sufficient to overcome the presumptive validity of a subsequent marriage.

The trial court declined to find that Joan's Mexican divorce was invalid. Furthermore, the court found that Steven's challenge to the divorce was barred by estoppel and laches. Finally, the trial court ruled that Steven had no right to support from Melvin after reaching age 18 and that the distribution should be 80% to Joan and 20% to Steven.

The Appellate Division reversed and remanded for a plenary hearing on the validity of the Mexican divorce and the application of estoppel and laches. In remanding, the Appellate Division expressed its disagreement with the trial court's ruling that Steven had no right to financial support after reaching age 18. Both lower court opinions are unreported.

We granted certification, 85 N.J. 479 (1980), and now reverse in part and affirm in part. We conclude that Steven failed to overcome the presumptive validity of Joan's Mexican divorce and of her marriage to Melvin. As the surviving widow, she is entitled to share in the distribution of the proceeds of the judgment. Nonetheless, we agree that a factual issue exists whether Steven had a right to financial support, including a contribution toward a college and law school education, after attaining age 18. We remand for reconsideration of the distributive shares in light of that conclusion.


Joan's first marriage ended in 1962 in an uncontested Mexican divorce. At the time of her second marriage, in 1970, she advised the clerk of the first marriage and its termination by a Mexican divorce. The second marriage ended in a final judgment of divorce entered in New Jersey in an uncontested proceeding on September 25, 1973. Once again, Joan disclosed to the court her first marriage and its dissolution in Mexico.

Joan married Melvin on November 26, 1973 in New Jersey. Melvin had been married once before and his only child, Steven, was 17 at the time of his father's marriage to Joan. On July 8, 1975, Melvin was killed in an automobile accident. At that time, Steven was 19 and had attained his age of majority. Joan was named administratrix of Melvin's estate. In accordance with the intestacy statute then in effect, Joan received one-third and Steven two-thirds of the estate. N.J.S.A. 3A:4-2 (1953) (current version at N.J.S.A. 3A:2A-34, effective September 1, 1978). Steven consented to Joan's appointment as administratrix and to the distribution of the estate in 1977.

Joan was appointed also as administratrix ad prosequendum to pursue a wrongful death action under N.J.S.A. 2A:31-1. On July 6, 1978, the insurer representing Arrigo, the owner of a vehicle involved in the accident, paid into court its policy limits, $100,000. Because Joan and Steven were unable to agree on the division of the net proceeds, the court ordered a hearing to settle the dispute.

At the hearing, Joan testified about her marriage to Melvin, her dependence on him and his support of Steven. On cross-examination, Steven's counsel elicited that, during her first marriage, Joan had lived in no state other than New Jersey and that her first marriage had ended in a Mexican divorce. She testified further that she was represented by counsel and appeared personally in the Mexican proceedings. Her first husband did not appear in those proceedings. Steven's counsel did not ask Joan about the details of her residence in Mexico or whether her

first husband had been served with process or represented by counsel in the Mexican proceedings. Steven offered no evidence attacking the validity of the Mexican divorce.

On two occasions the trial court expressed doubt about the sufficiency of the evidence challenging the presumptive validity of the Mexican divorce and the marriage of Joan and Melvin. After the hearing, the trial court permitted Steven's counsel to submit a post-trial brief on the validity of the Mexican divorce. Thereafter the trial court concluded that the proofs were insufficient to establish the invalidity of the divorce. In reversing, the Appellate Division found inapposite the presumptive validity of the latest of two or more marriages. In reaching that conclusion, the Appellate Division misapprehended that the benefit of the presumption was restricted to claims by widows in worker's compensation death cases.


Until Melvin's untimely death in an automobile accident, he and Joan considered themselves husband and wife. They participated in a ceremonial marriage and lived and traveled together. They filed joint tax returns and, as Melvin's wife, Joan played golf at his country club. Financially, socially and in the eyes of the world, they were married; the law also viewed them as husband and wife. Where marital partners have engaged in prior marriages, a strong presumption supports the validity of their prior divorces and the last marriage. Kazin v. Kazin, 81 N.J. 85, 96 (1979). Reasons for the presumption are readily apparent. The presumption reflects a belief that parties would not willingly commit bigamy or illegitimize their children. Sparks v. Ross, 72 N.J. Eq. 762, 765 (Ch.1907), aff'd, 75 N.J. Eq. 550 (E. & A. 1909). The presumptive validity of the latest of multiple ceremonial marriages comports with the expectation of marital partners and lends stability to human affairs. Increasing incidences of divorce and remarriage strengthen the continuing need for the presumption. [88 NJ Page 537] In New Jersey, the presumption has been applied in contexts as varied as human experience. Sparks v. Ross, supra (new trial ordered in quiet title action for evidence to be considered in light of presumption where surviving second wife produced marriage certificate and evidence of 15 years cohabitation); Dawson v. Hatfield Wire & Cable Co., 59 N.J. 190, 193 (1971) (opinion of the Court by Mountain, J.); id. at 205-206 (Francis, J., concurring and dissenting) (validity of ceremonial marriage not overcome by evidence that prior Georgia marriage had not ended in divorce in New Jersey or in 111 of 159 Georgia counties); Booker v. James Spence Iron Foundry, 80 N.J. Super. 68, 73-74 (App.Div.1963) (proof of prior marriages by decedent and wife was insufficient to overcome presumption since evidence did not establish that decedent's first marriage was ever valid or that wife's first husband was still living at time of later marriage); Balazinski v. Lebid, 65 N.J. Super. 483 (App.Div.1961) (clear and convincing evidence of first marriage; survival of first spouse overcomes presumption of validity of second marriage, so conveyance to husband and second wife created tenancy in common, not tenancy by the entirety); Simmons v. Simmons, 35 N.J. Super. 575 (App.Div.1955) (reversal of dismissal of separate maintenance suit by wife against second husband for a finding of whether there was a second marriage); Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 273 (App.Div. 1953), modified on other grounds, 24 N.J. 128 (1957) (assertion by first wife that she knew of no divorce proceedings could not overcome presumption that second wife was the widow and thus did not warrant new trial on worker's compensation claim); Hoffman v. Jinks, 134 N.J. Eq. 91, 94 (E. & A. 1943) (wife, rather than sister, of testator takes residue of estate notwithstanding evidence that former husband was alive and absent proof of annulment or divorce proceedings); Schuler v. Schuler, 114 N.J. Eq. 220, 226 (E. & A. 1933) (where husband and wife participated in ceremonial marriage and cohabited, wife ordered to pay husband from the sale of real estate placed in the wife's name); Schaffer v. Schaffer, 88 N.J. Eq. 192, 194 (Ch.1917), aff'd sub

nom. Schaffer v. Krestovnikow, 89 N.J. Eq. 549 (E. & A. 1918) (husband's request for annulment denied and alimony ordered for wife in reliance on the presumptive validity of second marriage).

One attacking the validity of the most recent of multiple marriages is under a heavy burden to establish its invalidity by clear and convincing evidence. Kazin v. Kazin, supra, 81 N.J. at 96. Furthermore, the challenger must meet that burden not only with respect to the occurrence and validity of a prior marriage at the time it was entered, but also its continuing validity at the time of the challenged marriage. Dawson v. Hatfield Wire & Cable Co., supra, 59 N.J. at 193. The challenger must disprove every reasonable possibility that could vitiate the prior marriage. Id. at 205-206.

The related presumption in favor of the validity of prior divorces is akin to estoppel to deny the validity of a prior divorce. Kazin v. Kazin, supra, 81 N.J. at 96. Both principles recognize the reality of the increasing rate of divorce and remarriage. The law no longer insists on confining people in the grave of a dead marriage. Id. at 98. Modern matrimonial law has relaxed the requirement for divorce and granted greater freedom to individuals in the pursuit of marital happiness.

We hold, therefore, that irrespective of the factual context in which the issue may arise, the last of two or more marriages is presumptively valid. The presumption of validity may be overcome only by clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was not terminated by death or divorce before the latest marriage. We hold further that, where one attacks the validity of a divorce obtained in a foreign state or country, the challenger must prove all asserted defects, including lack of jurisdiction in the foreign court. In all respects, the burden rests not upon the party defending the most recent marriage, but upon the challenger to demonstrate invalidity of the prior divorce.


Applying that long-standing presumption to this case, we conclude that the evidence failed to overcome the presumptive validity of Joan's marriage to Melvin. Steven was obliged to prove the validity of her prior marriages and the invalidity of their termination by death or divorce. See Booker v. James Spence Iron Foundry, supra, 80 N.J. Super. at 76. He proved neither proposition. The cross-examination of Joan went no farther than to establish that she had not lived in any other state. She was not asked whether she had ever resided in any other country. She was not obliged to prove that the Mexican court had jurisdiction; Steven was obliged to prove that court did not have jurisdiction. Similarly, her testimony that her first husband did not appear personally in the Mexican proceeding cannot undermine the jurisdiction of the Mexican court. Steven offered no proof that Joan's first husband did not submit to its jurisdiction or appear through counsel in Mexico. In brief, the record is marked by an absence of clear and convincing evidence of the alleged jurisdictional defect in the Mexican proceeding.

Furthermore, both Joan and Melvin acted as if the first divorce was valid. At the time Joan applied for her second marriage license, she advised the clerk of the first marriage. When the second marriage ended in divorce, she disclosed to the court her prior marriage and its termination in a Mexican divorce. After her marriage to Melvin, they lived and acted like husband and wife. Under certain circumstances, one who enters into and accepts the benefits of a marriage may be equitably estopped from denying the validity of that marriage. For example, a husband who participates in obtaining his wife's prior foreign divorce may be estopped to deny the validity of that divorce. Kazin v. Kazin, supra, 81 N.J. at 98.

In some jurisdictions, an estoppel binding an ancestor could also bind heirs, such as Steven. In re Anderson's Estate, 121 Mont. 515, 526, 194 P. 2d 621, 626 (1948) (children estopped from challenging stepmother's divorce in will contest because father,

who encouraged and paid for divorce, would have been estopped); In re Davis' Estate, 38 Cal.App. 2d 579, 585, 101 P. 2d 761, 764 (1940) (same holding in heirship proceeding between son and stepmother). Contra, In re Kant's Estate, 272 So. 2d 153, 156-157 (Fla.1972) (minor children not estopped from challenging stepmother's Mexican divorce in intestacy proceeding even if father would have been estopped); In re Lindgren's Estate, 293 N.Y. 18, 21-24, 55 N.E. 2d 849, 850-851 (1944) (daughter not estopped from attacking parents' divorce in intestacy dispute with stepmother although both parents would have been estopped as active parties to proceeding). But cf. Flammia v. Maller, 66 N.J. Super. 440, 456-458 (App.Div.1961) (conduct of wife in obtaining Mexican divorce not imputed to first husband to estop him from asserting invalidity of divorce in intestacy dispute with purported second husband). Finally, by consenting to Joan's appointment as the administratrix of his father's estate and to her taking one-third of the estate as provided by the intestacy statute, Steven indicated his acceptance of Joan's status as his father's widow.

The amount recovered in a wrongful death action is "for the exclusive benefit of the persons entitled to take any intestate property of the decedent, and in the proportions in which they are entitled to take the same," provided they were dependent on the decedent for support at the time of his death. N.J.S.A. 2A:31-4. In his concurring opinion, Justice Pashman would expand the statutory definition of heirs-at-law to include one who was a wife-in-fact, although not legally married to a decedent. Justice Pashman relies on Dawson v. Hatfield Wire & Cable Co., supra, in which this Court held that a woman who had participated in a ceremonial marriage and lived with an employee for 16 years was entitled to worker's compensation death benefits as his widow. Writing for the Court in Dawson, Justice Mountain acknowledged that the ...

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