Goodpasture v. Goodpasture

• Decision Date: 25 May 1971
• Parties: Robert C. GOODPASTURE and Barbara P. Goodpasture, his wife, Plaintiffs, v. Joan H. GOODPASTURE, Defendant.
• Court: New Jersey Superior Court

Page 189

115 N.J.Super. 189

278 A.2d 531

Robert C. GOODPASTURE and Barbara P. Goodpasture, his wife, Plaintiffs, v. Joan H. GOODPASTURE, Defendant.

Superior Court of New Jersey Chancery Division.

May 25, 1971.

Kasen, Schnitzer & Kraemer, Newark (Daniel G. Kasen, Newark, appearing), for plaintiffs.

Ryan, Foster & Garofalo, East Orange (William Ryan, East Orange, appearing), for defendant.

HARTMAN, J.C.C. (temporarily assigned).

Plaintiff sues to partition real estate, the former matrimonial home of the parties. Defendant, his former wife, seeks to prevent it. The central question to be decided is whether plaintiff's unilaterally undertaken obligations regarding use and occupation of the home by defendant and the child, entered in his Ex parte Nevada divorce proceedings on his own motion, constitute a waiver of his right to partition or estop him from asserting that claim. I find no case directly in point.

The relevant facts are not in dispute. The parties met sometime in the late summer or early fall of 1958. Each had been married and divorced, and each had two children by the former marriages. They were married on July 2, 1959. Defendant sold her Florida property (granted to her in her prior Florida divorce proceedings) and applied the proceeds of that sale to the purchase of a home in Montclair. In 1963 their Montclair home was sold and the appreciated net proceeds used to purchase 34 Maple Drive, in North Caldwell, as tenants by the entirety. This is the matrimonial home which plaintiff now seeks to partition. It is presently being occupied by defendant, her 18-year-old youngest son by her first marriage, and Margot, the only child of this marriage, now eight years of age.

Defendant's answer alleges that plaintiff deserted her in June 1965. There is nothing before the court to indicate how she got along for the following two years. In any event, he filed an action for divorce against defendant in Clark County, Nevada, in 1967. Service of that complaint was made on defendant in New Jersey on February 9, 1967. Defendant filed no appearance in the action nor did she participate in the Nevada proceedings in any manner. On March 3, 1967 'defendant not being present personally, and not being represented by counsel or any other person,' the Nevada district judge granted plaintiff an absolute divorce on the ground of 'extreme cruelty, mental, in nature.'

In view of the issue before this court, the findings of the Nevada judge and his adjudications are set forth as follows:

1. That for a period longer than six weeks immediately preceding the verification of said complaint, plaintiff has been and still is, an actual bona fide resident of the State of Nevada.

2. That plaintiff and defendant intermarried at Montclair, New Jersey, on or about July 2, 1959, and ever since have been and still are, husband and wife.

3. That there is one minor child the issue of said marriage, to wit: MARGOT, born September 1, 1962; that plaintiff is willing and able to pay to defendant the sum of $100.00 per month for the support and maintenance of said child until she reaches the age of majority so long as he is accorded reasonable visitation rights with said daughter.

4. That plaintiff is willing to be required to pay monthly mortgage payments, property taxes and property insurance on the jointly owned property of the parties, located at 34 Maple Drive, North Caldwell, New Jersey, so long as he retains an interest therein and so long as the defendant does not remarry and continues to live in said residence with said daughter.

5. That plaintiff is ready to be required to pay to defendant as and for alimony the reasonable monthly sum of $180.00 so long as she does not remarry; and, in the event that plaintiff is no longer required to make payments on the residence at 34 Maple Drive, then said alimony shall be increased by the monthly sum of $160.00, making a total of $340.00, per month until defendant remarries.

6. That since the said marriage of the parties, defendant has treated plaintiff with extreme cruelty, mental in nature, without just cause therefor, and that plaintiff's health was, and is, thereby and therefrom impaired.

7. That the Court has jurisdiction as to the plaintiff herein.

NOW, THEREFORE, upon the above findings, and good cause appearing therefor, upon motion of JACK G. PERRY, attorney for plaintiff,

IT IS ORDERED, ADJUDGED AND DECREED that the bonds of matrimony now and heretofore existing between plaintiff and defendant, be, and the same hereby are, wholly dissolved and set aside, and that plaintiff, ROBERT C. GOODPASTURE, be, and he is hereby, decreed an absolute and final decree of divorce from the defendant, and the parties hereto and each of them are hereby restored to the status of single, unmarried persons.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff pay the sum of $100.00 per month for the support and maintenance of his child, MARGOT, until said child reaches age majority, so long as he is accorded reasonable visitation rights with said daughter.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff pay the monthly mortgage payments, property taxes and property insurance on the jointly owned property of the parties, located at 34 Maple Drive, North Caldwell, New Jersey, so long as the defendant does not remarry and continues to live in said residence with said daughter.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff pay to defendant as and for alimony, the sum of $180.00 per month so long as she does not remarry; and, in the event that plaintiff is no longer required to make payments on the residence at 34 Maple Drive, then said alimony shall be increased by the monthly sum of $160.00, making a total of $340.00 per month until defendant remarries.

DATED and DONE in Open Court, this 3rd day of March, 1967.

It is not disputed that following the entry of the Nevada decree of divorce plaintiff made the support payments pursuant to the provisions thereof, including the payments for the mortgage, taxes and insurance on the New Jersey home. Thereafter, defendant brought an action against plaintiff in the Supreme Court of New York (plaintiff had remarried following his Nevada divorce and was apparently then living in New York) for a declaratory judgment adjudging his last marriage to be null and void and of no force and effect. After six days of hearings in that court a judgment was filed on July 24, 1968 declaring plaintiff's Nevada divorce to be a valid one and entitled to full faith and credit.

From the date of the entry of plaintiff's Ex parte decree in Nevada on March 3, 1967, to the present time, including the time of the pendency of the New York proceedings attacking the validity of that decree, plaintiff has regularly made the payments of alimony and support for defendant and their child and has faithfully and regularly made the mortgage, tax and insurance payments in accordance with the Nevada decree.

The validity of the Nevada decree dissolving the marriage having been laid to rest in the New York proceedings, the latter judgment compels its respect under the Full Faith and Credit Clause of the Federal Constitution. Kram v. Kram, 52 N.J. 545, 247 A.2d 316 (1968), and cases cited therein. So long as the parties remained husband and wife they enjoyed an estate by the entirety in the matrimonial home which could not be partitioned. But with the entry of the valid Nevada divorce the estate by the entirety was automatically, by operation of law, converted into one of tenancy in common. Eberle v. Somonek, 24 N.J.Super. 366, 94 A.2d 535 (Ch.Div.1953), aff'd p.c. 27 N.J.Super. 279, 99 A.2d 377 (App.Div.1953).

As to matrimonial co-tenants, the right to partition between them is an absolute one. Drachenberg v. Drachenberg, 142 N.J.Eq. 127, 58 A.2d 861 (E. & A.1947), Michalski v. Michalski, 50 N.J.Super. 454, 460, 142 A.2d 645 (App.Div.1958). A husband's abandonment of his wife and his refusal to support her is no defense to his rights in his property. Pentek v. Pentek, 117 N.J.Eq. 292, 175 A. 623 (Ch.1934); that it is the family home is no defense. Heldt v. Heldt, 29 Ill.2d 61, 193 N.E.2d 7 (1963). An oral agreement not to partition interests in real property is not a defense since it is affected by the statute of frauds. Brands v. Cassedy, 124 N.J.Eq. 417, 1 A.2d 639 (Ch.1938), aff'd 125 N.J.Eq. 346, 5 A.2d 685 (E. & A.1939).

This absolute right, however, is subject to some limitations. Thus, written agreements not to partition are sanctioned if they are fair and equitable. Property settlement agreements between husband and wife, to the extent they are equitable and fair, are enforceable in equity. An agreement not to partition must be reasonable as to time, and may be expressed or implied. Hotchkin v. Hotchkin, 105 N.J.Super. 475, 253 A.2d 184 (Ch.1969) (involving partition of personal property); Michalski v. Michalski, Supra (where cotenants' agreement not to partition until one of them should die--wife was more than 70, the husband more than 60--was held not to be an unreasonable period of restraint on partition).

Plaintiff fixed his own terms for the support and maintenance of his wife and child. He was fully aware of his title interest in his New Jersey property. By his own unilateral act, memorialized as such in his divorce decree, he gave assurance to his wife--to all intents and purposes a promise--that so long as she remained in the home and was unmarried, and as long as the child was here with her, she was safeguarded with a roof over their heads and he would keep up the mortgage and tax payments and keep the home insured. He was represented by counsel. It is to be presumed that he knew, or should have known, that with a valid divorce decree the right of partition was his. If he did not know it, reasonable inquiry would have disclosed the fact.

In effect he represented to his wife by his terms, albeit unilaterally, that she could have...