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Darryl L. Prosser v. Kenda R. Bagby

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 22, 2010

DARRYL L. PROSSER,
PLAINTIFF-APPELLANT,
v.
KENDA R. BAGBY,
DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1023-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010 - Decided Before Judges Fisher and Sapp-Peterson.

Plaintiff, Darryl L. Prosser, appeals from the Family Part order denying his motion to vacate a final judgment of divorce (FJOD) on the grounds that he and defendant, Kendra R. Bagby, were never legally married. We affirm.

The parties were married on October 24, 1998, in a marriage ceremony performed at a resort in Ocho Rios, Jamaica. On January 2, 2008, Prosser filed for divorce. The FJOD was entered on December 22, 2008, and incorporated the terms of the parties' Property Settlement Agreement (PSA) placed on the record that same date. Subsequently, an amended FJOD was entered on June 18, 2009, which included a typed, though unsigned, PSA. In seeking to vacate the judgment, plaintiff argued that the marriage was not legal because he did not recall the parties securing a marriage license in advance of the marriage pursuant to N.J.S.A. 37:1-10 and that his attorney never proved there was a legal marriage at the time of the divorce hearing. In rejecting this argument, the court said that the question before it was whether there was adequate testimony during the divorce hearing of the fact that a marriage occurred. The judge noted further that "[i]t is not required that someone come to court and prove the existence of a license. What . . . is required is that someone testified that there was a valid marriage. I assume that [defendant] came to [c]court and testified there was a valid marriage." The present appeal followed.

On appeal, plaintiff claims he was "deprived of rights that were due to him under the law. Representing attorney refused to protect my rights and substituted The Law with Color of Law." We have considered this claim in light of the record and applicable legal principles and conclude that plaintiff's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

At the time plaintiff appeared before the motion judge, he failed to present a copy of the transcript of the divorce proceedings in support of the motion. The judge advised plaintiff that he would be happy to reconsider the motion if plaintiff ordered the transcript of the proceedings. The transcript has been included as part of the record on appeal. It reveals that plaintiff and defendant appeared before the court on the divorce complaint on December 22, 2008. Both parties were represented by counsel. Plaintiff's counsel advised the court that the parties had reached an agreement on issues of equitable distribution, custody, alimony and child support. Both parties, under oath, acknowledged the fact that they were married to each other on October 24, 1998, in Jamaica. The trial court credited this testimony, as well as additional testimony, and found that plaintiff established the "appropriate grounds for dissolution of the marriage."

Plaintiff's reliance upon N.J.S.A. 37:1-2 to support his contest to the validity of his marriage is misplaced as the statute establishes the requirements for the lawful performance of a marriage "in this State." The validity of a marriage is determined by the law of the jurisdiction where the marriage was performed. Capossa v. Colonna, 95 N.J. Eq. 35, 37 (Ch. 1923), aff'd, 96 N.J. Eq. 385 (E. & A. 1924). The marriage having been performed in Jamaica, the requirements for the marriage were subject to the laws of that jurisdiction. In the absence of evidence to the contrary, the court properly accepted the sworn testimony of both parties at the time of the divorce hearing that they were joined in marriage by virtue of a ceremony performed in Jamaica.

Affirmed.

20101222

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