Fantony v. Fantony

• Decision Date: 14 May 1956
• Docket Number: No. A--140,A--140
• Citation: 21 N.J. 525,122 A.2d 593
• Parties: Jose Gonzalez FANTONY, Plaintiff-Appellant, v. Kathryn B. FANTONY, Defendant-Respondent, and Republic of Cuba, Intervenor-Appellant.
• Court: New Jersey Supreme Court

Page 525

21 N.J. 525

122 A.2d 593

Jose Gonzalez FANTONY, Plaintiff-Appellant, v. Kathryn B. FANTONY, Defendant-Respondent and Republic of Cuba, Intervenor-Appellant.

No. A--140.

Supreme Court of New Jersey.

Argued April 25, 1956.

Decided May 14, 1956.

Leon Dreskin, Newark, argued the cause for plaintiff and intervenor-appellant (Frederick C. Vonhof, Newark, on the brief).

Charles Handler, Newark, argued the cause for defendant-respondent.

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a judgment of the Superior Court, Chancery Division, awarding the custody of an infant child to the defendant-respondent mother. The Republic of Cuba was permitted to intervene below since the plaintiff-appellant is a national of that country. We certified the appeal here on our own motion. R.R. 1:10--1(a).

The appellant married the respondent, who prior to her marriage was a United States citizen and a resident of this State, on July 9, 1948, in Havana, Cuba. They cohabited there until the early part of January 1952. The child Patricia was born in this State at the Fitkin Memorial Hospital, Neptune, New Jersey. The mother came back to this country with the father's permission so that she could be near her own mother when the child was born. Several months later respondent returned with her daughter to Cuba and during the next two years the family visited back and forth with her mother.

In November 1951 the respondent's mother went to Havana to visit her, and on January 9, 1952 the respondent, her mother and the child left Havana by airplane under assumed names. This was admittedly done without the knowledge of the appellant-husband, without his consent and against his will. They have resided in New Jersey ever since.

The appellant followed immediately and on January 22, 1952 filed a complaint in the Superior Court, Chancery Division, asking that the child be produced in court and praying that the custody of the child be awarded to him. When this action came on for final hearing on November 18, 1952 Judge McLean was informed that the parties had composed their differences and that the respondent had agreed in writing to return with their child to Havana shortly after January 1, 1953. The respondent subsequently refused to return to Havana and appellant thereupon secured an order vacating the judgment and reinstating the action for trial.

In the meanwhile, after having instituted this suit in this State in January 1952, the appellant instituted an action for divorce in Havana, Cuba, on the grounds of desertion on July 26, 1952, and process issued in that case on July 30, 1952, and the respondent was personally served in Asbury Park in this State on September 28, 1952. The action was for desertion based upon a six months' desertion which is a ground for divorce under the Cuban law. The respondent- wife did not appear or contest that proceeding. A judgment for divorce on the grounds of desertion was entered in that cause on July 10, 1953, in favor of the appellant, and custody of the child was awarded to the appellant in that case. The judgment was served on the respondent on July 27, 1953.

The matter again came on for final hearing in January 1954, and after several days of hearing Judge McLean held that the parties to this proceeding were domiciled in the Republic of Cuba, residing in Havana at the time this action was instituted and when it was heard and that the question of custody should be determined in the court of the Republic of Cuba where the parties were domiciled. He dismissed the complaint and the counterclaim of the respondent-wife for maintenance and he denied a motion to supplement the record to set forth the proceeding and judgment for divorce obtained by the appellant in Havana, Cuba. The plaintiff-appellant here then appealed from this judgment and the order denying the application to supplement the record, to the Appellate Division.

On that appeal certified copies of the Cuban divorce and custody proceedings were presented to the Appellate Division, but they expressly reserved any determination with respect to whether such judgment would or would not be conclusive and held that the appellant should have the right to submit the Cuban judgment by way of supplemental complaint and the defendant the opportunity to raise such jurisdictional questions and set up such defenses as would be appropriate, and the cause was remanded for that purpose. Gonzalez-Fantony v. Fantony, 31 N.J.Super. 14, 105 A.2d 909 (App.Div.1954).

The matter then came on for trial before Judge Knight and the record of the Cuban proceedings was established by evidence and there was testimony concerning the laws of Cuba on divorce and custody. Judge Knight held that the record of the Cuban proceedings reciting all the evidence taken and the testimony of the expert on Cuban law taken in this case indicated that no evidence had been or could be received by the Cuban court relative to the welfare of the child 'since the award of custody to the mother residing abroad would 'fall under the materially impossible provisions' of the code' as testified by the expert. 36 N.J.Super. 380, 115 A.2d 613. He found that the Cuban court had not been apprized that a contested custody proceeding was then pending in this State with all the parties before the court, including the Republic of Cuba as an intervener. He found that the notice served upon the respondent did not sufficiently apprise her of the fact that the custody question would be placed in issue there, found that the legislative policy of this State is opposed to the removal from this State of 'native children' and this would be especially enforced since the Cuban law takes an even more positive attitude in this respect and does not make the welfare of the child the cornerstone of guidance in such issues. He awarded custody to the mother because the child was of tender years, (1) on the presumption the mother's right would be superior, and (2) on the report of the Probation Department of Essex County that the child was a happy and healthy child receiving excellent care from the mother, doing very well in school in all activities and receiving adequate religious training and that her routine of life should not be disrupted at this time. He said the paramount concern was for the welfare of the child and awarded custody to the respondent with visitation privileges and with the amount of support to be agreed upon by the parties.

The first point made by the appellant is that the law of the case has been fixed by the opinion of Judge McLean and by that of the Appellate Division. We agree that the prior decision of the Appellate Division for the purposes of the retrial became the law of the case and binding on the trial court; but it is not Stare decisis on this court. New Amsterdam Casualty Co. v. Popovich, 18 N.J. 218, 224, 113 A.2d 666 (1955), and the cases cited. In fact, the Appellate Division did not decide the question here presented but remanded it to the trial court.

On the authority of Hachez v. Hackez, 124 N.J.Eq. 442, 446, 1 A.2d 845 (E. & A.1938), the appellant contends that the Cuban decree under the rule of comity is entitled to full faith and credit in this State and is Res adjudicata of the question subsequently decided by Judge Knight in the proceeding here and binding on the courts of this State.

Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 143, 40 L.Ed. 95 (1895); The Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 28 S.Ct. 337, 340, 52 L.Ed. 625 (1908). Also see 11 Am.Jur., sec. 5, p. 299.

The recognition of a judgment of a foreign court under the principle of comity is subject generally to two conditions: (1) that the foreign court had jurisdicition of the subject matter; (2) that the foreign judgment will not offend the public policy of our own State. Zanzonico v. Neeld, 17 N.J. 490, 495, 111 A.2d 772 (1955); cf. Guarantee Bank & Trust Co. v. Gillies, 8 N.J. 88, 101, 83 A.2d 889 (1951); Hachez v. Hachez, supra, 124 N.J.Eq. at page 447, 1 A.2d at page 847. The rule of comity is grounded in the policy of avoiding conflicts in jurisdiction, unless upon strong grounds, and the general principle that the court which first acquires jurisdiction of an issue has precedence, in the absence of special equities. A litigant cannot be compelled to act elsewhere, but may remain in the court which first acquires jurisdiction and abide by the terms of its decree. O'Loughlin v. O'Loughlin, 6 N.J. 170, 179, 78 A.2d 64 (1951); Stultz v. Stultz, 15 N.J. 315, 319, 104 A.2d 656 (1954). The expressions in these cases on the principles of comity are in accord with the decisions of the United States Supreme Court.

The appellant here voluntarily invoked the jurisdiction of our courts, when he instituted his original action for custody in this State. It was presumed from this that he would abide by the judgment of our courts, without the courts maintaining physical power over his actions, and that he would remain in the jurisdiction and abide by the judgment. Swanson v. Swanson, 8 N.J. 169, 179, 84 A.2d 450 (1951). In the words of Mr. Justice Holmes, 'This is one of the decencies of civilization that no one would dispute.' Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867 (1913).

Hachez v. Hachez, supra, relied on by the appellant, is distinguishable. There none of the parties was resident or domiciled in New Jersey. The mother was temporarily a resident of the City of New York; the father was a...