Faustin v. Lewis

• Decision Date: 31 March 1981
• Citation: 85 N.J. 507,427 A.2d 1105
• Parties: Jossline FAUSTIN, a/k/a Josseline Lewis, Plaintiff-Appellant, v. Maurice LEWIS, a/k/a Maurice Riley and James Oscar Lewis, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 507

85 N.J. 507

427 A.2d 1105

Jossline FAUSTIN, a/k/a Josseline Lewis, Plaintiff-Appellant, v. Maurice LEWIS, a/k/a Maurice Riley and James Oscar Lewis Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 17, 1980.

Decided March 31, 1981.

W. Marshall Prettyman, Sr. Atty., Newark, argued the cause for appellant (Timothy Weeks, Executive Director, Essex-Newark Legal Services; Gerald Brennan and Doreen Goldbronn, Orange, on the brief).

No appearance was made on behalf of defendant-respondent.

The opinion of the Court was delivered by

SULLIVAN, J.

Plaintiff Jossline Faustin was denied an annulment of her marriage to Maurice Lewis based upon a trial court ruling that she was guilty of "unclean hands" and thus not entitled to judicial relief. The Appellate Division affirmed. 172 N.J.Super. 399, 412 A.2d 457 (1980). This Court granted certification to consider the extent to which the equitable doctrine of unclean hands should have continued application to annulment proceedings.

The facts appear undisputed, although the case was never fully litigated, the ruling being made solely upon plaintiff's offer of proof. Plaintiff is a native Haitian who came to this country in 1974 on a temporary visitor's visa. At that time defendant was in the employ of persons engaged in the unlawful business of arranging sham marriages between United States citizens and Haitians for a fee of between $500 and $1200 so that the latter could obtain permanent residence in this country. Defendant, using various names, had married a number of Haitians for this purpose. On November 4, 1974, he participated in a marriage ceremony with plaintiff in Newark, New Jersey, which was performed by Reverend Heber Brown. It is undisputed that plaintiff and defendant participated in the ceremony solely for the purpose of making plaintiff eligible for lawful permanent residence in the United States. Plaintiff had no marital relationship with defendant either before or after the ceremony.

In June 1977, a federal grand jury indicted defendant and several other persons for unlawfully assisting Haitian aliens to fraudulently obtain permanent residence in the United States in violation of the immigration and naturalization laws. One of the counts specifically referred to defendant's marriage to plaintiff. Reverend Brown was named in the indictment as an unindicted co-conspirator.

In February 1978, plaintiff filed the present action in the Chancery Division seeking an annulment of her marriage to defendant. The complaint, after reciting the foregoing facts, does not specify the grounds for annulment except to allege that the marriage was fraudulent. Defendant did not answer the complaint and a default was entered against him. At the final hearing, plaintiff sought to amend the complaint to include an additional count alleging a bigamous marriage. The court, however, denied the application because notice thereof had not been given to the defendant.

On December 20, 1978, the trial court dismissed plaintiff's complaint, ruling that, even if plaintiff proved the allegations in the complaint, she would not be entitled to relief because she had knowingly participated in the fraudulent marriage and had entered into it solely to obtain permanent residence in the United States. The court held that plaintiff came into court with unclean hands and thus was not entitled to the relief sought. The Appellate Division affirmed for essentially the same reasons. 172 N.J.Super. 399, 412 A.2d 457 (1980).

The divorce and nullity statute, N.J.S.A., 2A:34-1 et seq., specifies the causes for judgments of nullity. In pertinent part it provides:

Judgments of nullity of marriage may be rendered in all cases, when:

....

d. The parties, or either of them, lacked capacity to marry due to want of understanding because of mental condition, or the influence of intoxicants, drugs, or similar agents; or where there was a lack of mutual assent to the marital relationship; duress; or fraud as to the essentials of marriage; and has not subsequently ratified the marriage.

(N.J.S.A. 2A:34-1)

Although plaintiff's complaint for annulment alleges a fraudulent marriage, plaintiff cannot rely on fraud as a ground for annulment. The "fraud" mentioned in paragraph d, supra, refers to fraud practiced on a party to the marriage. It has no application where, as here, both parties are knowing participants in a sham marriage.

Paragraph d, however, also provides that a judgment of nullity of marriage may be rendered "where there was a lack of mutual assent to the marital relationship" and the marriage has not been subsequently ratified. N.J.S.A. 2A:34-1 d. This provision, added to the statute in 1971, substantially enlarged the statutory grounds for nullity. Prior thereto, paragraph d, in dealing with the question of consent, allowed a judgment of nullity only where the parties or either of them, "were incapable of consenting thereto." N.J.S.A. 2A:34-1 (1952 ed.).

We conclude that plaintiff's marriage, entered into for the sole purpose of securing permanent residence in the United States, clearly falls within the language of the 1971 amendment to paragraph d. Here, neither of the parties intended to marry, nor did they thereafter enter into any kind of marital relationship with each other. Consequently, plaintiff alleged facts that if proven, establish a statutory ground for judgment of nullity of her marriage. See Ramshardt v. Ballardini, 129 N.J.Super. 445, 324 A.2d 69 (Ch.Div.1974). The critical issue is whether she should be barred from judicial relief because of her participation in the sham marriage.

The doctrine of unclean hands as applied to nullity actions in this State is judge-made and has no statutory basis. In simple parlance, it merely gives expression to the equitable principle that a court should not grant relief to one who is a wrongdoer with respect to the subject matter in suit. It is noteworthy that our courts have not always recognized the applicability of the doctrine in nullity matters. At one time, the courts of this State took the position that in suits for nullity of marriage contracts which were void under New Jersey statutes, where no property rights were involved, the doctrine of unclean hands, even though otherwise applicable, was subordinate to considerations of public policy which favored judicial declaration of marital status for the protection of public interests. E.g., Davis v. Green, 91 N.J.Eq. 17, 19-20, 108 A. 772 (Ch. 1919); Freda v. Bergman, 77 N.J.Eq. 46, 48-50, 76 A. 460 (Ch. 1910).

These decisions, however, were overruled in Tyll v. Keller, 94 N.J.Eq. 426, 120 A. 6 (E. & A. 1923), and it became the established law of this State that unclean hands was a per se bar to a litigant's obtaining a judgment of nullity. Smith v. Hrzich, 1 N.J. 1, 61 A.2d 497 (1948).

In the fifty-seven years since Tyll was decided, both the courts and the Legislature have increasingly given recognition to the reality that some marriages die, or never really exist as marriages, and have concluded as a result, that fault should not necessarily be a controlling factor in deciding whether or not to grant relief. As heretofore noted, the 1971 amendments to the divorce and nullity laws enlarged the statutory grounds for judgments of nullity to include situations "where there was a lack of mutual assent to the marital relationship" and the marriage has not been subsequently ratified. N.J.S.A. 2A:34-1 d. The same 1971 amendments added the concept of "No Fault Divorce" to the statute by providing an additional ground for divorce the separation of the parties for at least 18 consecutive months with no reasonable prospect of reconciliation. N.J.S.A. 2A:34-2 d. They also abolished recrimination, condonation and the unclean hands doctrine as defenses in a suit for divorce. N.J.S.A. 2A:34-7. This last provision is not made applicable to suits for nullity for reasons that are not entirely clear. There is some indication, however, that since the statute, in addition to the enumerated grounds for nullity, also allows judgments of nullity when "(a)llowable under the general equity jurisdiction of the Superior Court," N.J.S.A. 2A:34-1 f, it was felt that the equitable defenses should remain to be applied in the discretion of the trial court. Final Report to the Governor and the Legislature, Divorce Law Study Commission, 54, 57-60 (May 11, 1970).

Furthermore, this Court in Chalmers v. Chalmers, 65 N.J. 186, 193-194, 320 A.2d 478 (1974), in interpreting the property distribution provision of the 1971 amendments to the divorce laws, held that fault should not be one of the criteria or circumstances that might be taken into account in awarding distribution of the marital property even though the statute speaks in terms of "an equitable distribution." N.J.S.A. 2A:34-23.

These developments reflect the current attitude of our courts and the Legislature that it does not always further the public interest to have equitable defenses act as a per se bar to judicial consideration of questions concerning marital status. We conclude therefore, that Tyll, as a hard and fast rule, is unduly harsh and should be modified so as to return discretion to the trial court. Henceforth, it will be permissible to weigh the equities, as well as the public policy in having a person's marital status declared, to the end that uncertainty may be removed from future transactions, rights of inheritance, etc. See Freda v. Bergman, supra, 77 N.J.Eq. at 48-50, 76 A. 460.

We recognize that there may be situations where parties to a ceremonial marriage never intend to enter into a meaningful marriage relationship but nevertheless deliberately participate in the rite for the sole purpose of obtaining some tax advantage or other benefit. Such persons may well be considered as legally married. See 52 Am.Jur.2d, Marriage, § 29. This is not plaintiff's situation, however. Here the parties not only did not...