Chirelstein v. Chirelstein

• Decision Date: 16 May 1950
• Docket Number: No. M--458,M--458
• Parties: CHIRELSTEIN v. CHIRELSTEIN (CHIRELSTEIN et al., intervenors). /49.
• Court: New Jersey Superior Court

Page 504

8 N.J.Super. 504

73 A.2d 628

CHIRELSTEIN v. CHIRELSTEIN (CHIRELSTEIN et al., intervenors).

No. M--458/49.

Superior Court of New Jersey

Chancery Division.

May 16, 1950.

Benjamin M. Ratner, Newark, for plaintiff.

Edward J. Gilhooly, Newark (Gilhooly & Yauch, Newark, attorneys), for defendant.

Aaron Lasser, Newark (Hannoch & Lasser, Newark, attorneys), for intervenors.

SCHETTINO, J.S.C.

Plaintiff and defendant went through a ceremony of marriage in the State of New York on January 9, 1934. Prior thereto plaintiff had been married to James G. Rogers, who in 1924 obtained a final decree of divorce from her in New York on the ground of her adultery.

Immediately following the marriage ceremony, plaintiff and defendant came to New Jersey where they lived as husband and wife for a period of disputed duration.

On March 22, 1937, after a substantial period of separation, plaintiff obtained a final decree of divorce in the State of Florida. Defendant appeared therein and filed an answer. The decree is wholly silent on the subject of alimony. However, on March 18, 1937, the parties had entered into a written agreement at Miami, Florida, whereby, in contemplation of the divorce, defendant transferred to plaintiff assets worth $16,250 plus the sum of $1,000 in cash, which plaintiff agreed to accept 'in full payment of any and all claims of whatsoever nature that Cecile Chirelstein has had in the past, now has, or may have in the future for maintenance, support alimony and all other claims that have arisen or that may arise by reason of the marriage relationship heretofore and now existing between said parties, and that no other claims will be made by the said Cecile Chirelstein upon the said Nathan Chirelstein by reason of such marriage relationship.' No children were born of their marriage.

On May 13, 1937 Chirelstein married again. His second wife and two children by their marriage have intervened in the present cause.

Rogers is still alive.

On September 23, 1949 plaintiff instituted this action against Chirelstein for alimony, alleging that their marriage had been terminated by the Florida decree.

That complaint is virtually identical with a bill of complaint filed by her under the name of Cecile Rogers against Chirelstein in the Court of Chancery on May 15, 1939. In that proceeding, on defendant's motion to strike 'on the ground that the matters and things set forth in the bill of complaint do not show any ground for equitable relief', the bill was dismissed by a 'final decree' dated July 11, 1939, which provided that the dismissal was 'with prejudice'. No appeal was taken.

On September 25, 1940, plaintiff under the name of Cecile Chirelstein filed a petition for divorce in the Court of Chancery. No reference was made therein to the Florida decree. An application for alimony pendente lite was denied on November 7, 1940. Advisory Master Herr filed a memorandum in which he grounded the denial upon the statement that, despite charges made by plaintiff in an affidavit, the Florida decree is not void and that until that decree was avoided, 'she is not the wife of the defendant, and is not entitled to maintenance or suit moneys from him'. An answer was filed. No further proceedings were had until the action was dismissed after the institution of the present proceedings, upon a recital that plaintiff elected to proceed in the present suit.

The complaint in the present suit was amended. As amended, the complaint proceeds upon two alternative bases. In the first count, plaintiff seeks alimony on the hypothesis that her marriage to defendant was terminated by the Florida decree. The remaining counts alternatively allege that if the Florida decree is void she is entitled to a relief on the basis of a subsisting marriage. The second count seeks a divorce from bed and board while the third count seeks a divorce from the bonds of matrimony on the grounds of adultery with the intervenor-wife. The intervenor-wife counterclaims against plaintiff seeking a decree that intervenor's marriage to Chirelstein is valid.

Out of this marital confusion arise many questions:

1. Should plaintiff be required to elect to proceed on the hypothesis that the Florida decree terminated the alleged marriage or the hypothesis that it was inefficacious?

2. Was the marriage between plaintiff and defendant in New York valid under the law of that state in view of the circumstance that under the New York statute remarriage by a defendant divorced for adultery is prohibited except under conditions not here met?

3. If the New York marriage was void, did a common law marriage arise in New Jersey?

4. Is the Florida decree entitled to full faith and credit under the facts asserted by plaintiff?

5. If the Florida decree is entitled to full faith and credit, does it bar an inquiry as to whether the parties were in fact married prior thereto?

6. Under the Florida law did any right to alimony survive the decree notwithstanding that the decree was silent on the subject?

7. If no such right existed under Florida law, can New Jersey, by virtue of the amendment in 1938 to R.S. 2:50--37, N.J.S.A., grant alimony?

8. Does the dismissal 'with prejudice' of the 1939 action constitute a conclusive determination that plaintiff is not entitled to alimony?

9. Do the circumstances of the case call for a refusal to grant relief by reason of unclean hands, notwithstanding that the Florida decree is entitled to full faith and credit and plaintiff is otherwise entitled to prevail?

10. Assuming that plaintiff is in a position to claim alimony, may alimony be denied because of the circumstances of the case, and if so should alimony here be denied?

I do not think it necessary to consider all of these perplexing issues to reach a conclusion in this case.

Defendant demands that plaintiff elect whether to proceed on the theory of a dissolved marriage or a subsisting one. I see no basis for requiring an election. Where the interplay of the facts and the law is such that the legal soundness of the respective legal positions is debatable, alternative or hypothetical claims should be permitted. I can perceive no reason for requiring a litigant in these circumstances to make a conclusive anticipation of the views of the court. Modern rules of pleading permit alternative or hypothetical claims. Where the judicial treatment of the facts is in doubt, justice demands that the litigant be permitted to assert alternative positions which depend upon the successive determinations of the issues raised by the facts.

The first issue affecting the ultimate merits is whether plaintiff and defendant entered into a valid marriage.

The New York decree of divorce terminating her marriage to Rogers was obtained by him on the ground of adultery. Section 8 of the New York Domestic Relations Law provides that a defendant for whose adultery the judgment of divorce is granted in that state may not remarry in the lifetime of the complainant unless the court in which the judgment of divorce was rendered shall modify the judgment upon satisfactory proof that three (3) years have elapsed since the decree and that the conduct of the defendant since the dissolution of the marriage has been uniformly good. Section 6 denounces a marriage in violation of section 8 as 'absolutely void'. It is admitted that the marriage between the plaintiff and defendant in New York was in violation of section 8. From the expert testimony offered and my examination of the New York cases construing the statute, I am satisfied and find that the purported marriage between them was absolutely void. Heidig v. Heidig, 6 N.Y.S.2d 405, (Sup.Ct.1938); In re Miccio's Estate, 193 Misc. 754, 86 N.Y.S.2d 30 (Sur.Ct.1949).

The New York statute prohibiting remarriage has no extra-territorial effect. Hence had the marriage between the parties occurred in New Jersey, its validity would not have been assailable by reason of that consideration. King v. Klemp, 26 N.J.Misc. 140, 57 A.2d 530 (Ch.1947); 27 C.J.S., Divorce, § 182, p. 842; 51 A.L.R. 325; 32 A.L.R. 1116. Indeed, it appears that New York would have recognized such marriage if contracted in New Jersey. Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460 (Ct. of App.1929), annotated in 61 A.L.R. 1528; In re Briggs' Estate, 138 N.Y.Misc. 136, 245 N.Y.S. 600 (Sur.Ct.1930). Hence the impediment which prevented the making of a valid marriage in New York was removed when the parties returned to New Jersey after the ceremony. At that time common-law marriages were permitted. R.S. 37:1--10, N.J.S.A., which outlaws such marriages entered into on and after December 1, 1939, obviously does not affect the determination of the present cause. Cf. Brown v. United States, 72 F.Supp. 153 (D.C.N.J. 1947), affirmed 164 F.2d 490 (C.C.A.3d Cir., 1947), certiorari denied 333 U.S. 873, 68 S.Ct. 902, 92 L.Ed. 1149 (1948). The discussion which follows pertains to transactions prior to the statute.

The question therefore is whether it can be found that the parties entered into a common law marriage in this state. Plaintiff testified that the clerk in the marriage bureau advised her that she could not lawfully remarry if the divorce decree ran against her. She accordingly knew of the impediment, and her false statement in the application that she was the successful party in the divorce proceedings further evidences her knowledge. She testified that defendant was present when the clerk delivered the admonition and was a party to the falsity of the application. He denies the truth of the testimony and insists that he first learned that the New York decree ran against her just prior to the trial of the present cause. I believe his testimony and find as a fact that he was not, prior to that time, aware of the impediment to the marriage.

Two poles of the general problem are well established in this state. It is settled that where both parties to a marriage are then ignorant of the existence of...