Guerieri v. Guerieri

• Decision Date: 27 June 1962
• Docket Number: No. M1799,M1799
• Parties: Mary Margaret GUERIERI, Plaintiff, v. John GUERIERI, Jr., Defendant.
• Court: New Jersey Superior Court

Page 541

75 N.J.Super. 541

183 A.2d 499

Mary Margaret GUERIERI, Plaintiff, v. John GUERIERI, Jr., Defendant.

No. M1799.

Superior Court of New Jersey

Chancery Division.

June 27, 1962.

Perlman & Lerner, Trenton, for plaintiff (Rose Lerner, Perlman, Trenton, appearing).

Joseph P. Merlino, Trenton, for defendant.

BENNETT, J.C.C., temporarily assigned.

This is an action to set aside a divorce obtained by the defendant in the Winston County Circuit Court of Alabama on March 8, 1961; to procure a divorce by the plaintiff against the defendant on the ground of the adultery of the defendant; for custody of the child of the marriage between plaintiff and defendant, and for alimony and support.

The parties herein were lawfully married on November 29, 1952 in North Plainfield, New Jersey. The plaintiff, Mary Margaret Guerieri, presently resides at 39 Matthew Drive, Hamilton Square, New Jersey, while the defendant, John Guerieri, Jr. now resides at 247 Pope Avenue, Hamilton Township, New Jersey. Since receiving his Alabama divorce John Guerieri has married Rosalia R. Acolia, with whom he is living at this time.

The defendant appeared personally before the Alabama court on March 4, 1961, where he filed a complaint against the plaintiff for divorce on the ground of cruelty. At this time he produced a paper entitled 'Answer and Waiver,' which was signed by his wife on January 17, 1961. This 'Answer and Waiver' provides:

'Comes the Respondent in the above styled cause and accepts service of a Bill of Complaint heretofore filed in said cause; waives notice of the filing of interrogatories in said cause, and the right to cross same; waives notice of the taking of testimony in said cause; waives the appointment of a Commissioner for the taking of testimony and consents that testimony may be taken by affidavit, or affidavits before any Notary Public or other officer authorized to administer oath or commission appointed by the Court, or as provided by Alabama Code 1940, Title 7, Section 475, or otherwise in said cause, and consents that the cause may proceed and be submitted for final decree without further notice whatever to the respondent.

And for answer to the Bill of Complaint heretofore filed in this cause, Respondent denies the allegations thereof except those pertaining to the existence of the marriage relationship and jurisdiction and demands strict proof thereof.'

At the same time the defendant produced his wife's appointment of Alabama counsel, which also was executed on January 17, 1961.

The plaintiff claims that this waiver and appointment of counsel was achieved through threats and the exertion of undue pressures. In fact, on January 19, 1961 she sent a telegram to John Guerieri repudiating the waiver and appointment because of misrepresentation and absence of legal counsel. However, the defendant produced another statement signed by Mrs. Guerieri, dated February 9, 1961, advising him to disregard the telegram sent on January 19, 1961. The plaintiff also claims that this statement was procured by threats and pressures, and by the promise that no divorce proceedings would be initiated without consulting her. It is further alleged by the plaintiff that she knew nothing of the institution of the proceedings in Alabama, was not served with any complaint or summons therein, and knew nothing of the granting of the decree for divorce or of its existence until she saw in the Trenton Times newspaper a notice of application for a marriage license by John Guerieri, Jr. and Rosalia R. Acolia on November 3, 1961.

The relevant law of Alabama, as amended July 6, 1945, provides:

'When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.' Ala.Code of 1940, Title 34, section 29.

Jennings v. Jennings, 251 Ala. 73, 36 So.2d 236, 3 A.L.R.2d 662 (Sup.Ct.1948), concerned the power of the legislature to authorize a decree of divorce in Alabama when the parties are personally before the court, but reside in another state. The Supreme Court of Alabama therein held:

'Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366; Sherrer v. Sherrer, (334 U.S. 343,) 68 S.Ct. 1087, 1097, (92 L.Ed. 1429); Wilkes v. Wilkes, 245 Ala. 54, 16 So.2d 15. * * * * * * it is recognized that unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer jurisdiction on the courts of that state to grant a divorce.' (251 Ala. at p. 74, 36 So.2d at p. 237).

In Gee v. Gee, 252 Ala. 103, 105, 106, 39 So.2d 406 (Sup.Ct.1949), the court stated:

'Parties cannot by consent confer jurisdiction over a Res, nor can the legislature do so by act, when the Res is not within the power of state authorities.

The court properly overruled the motion to dismiss it for want of jurisdiction. However, the motion was not necessary, because if the proof was not satisfactory that one or both of the parties was a resident citizen of Alabama when the bill was filed, a decree of divorce could not be granted because of the absence of jurisdiction over the subject matter.'

In Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961), the Alabama Supreme Court upheld the action of a lower court which nullified on its own motion an Alabama divorce decree obtained by a New York couple in 1954 when it came to the court's attention that the parties were nonresidents when the decree was obtained. The court stated:

'Thus, where both parties to a divorce action do not reside within this state, the marriage relation is without the state and jurisdiction cannot be acquired by courts of this state even by consent of the parties.' (128 So.2d at p. 729).

In dealing with the Right of another state to Collaterally attack a judicial determination made in Alabama, the court in the Hartigan case said:

'Not only is it conclusive that the 1954 divorce decree was void for want of jurisdiction of the subject matter in Alabama, but it is not entitled to full faith and credit in other jurisdictions.' (at page 733).

It was held in Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945), that if Nevada's divorce decrees are to be accorded full faith and credit in the courts of her sister states, it is essential that Nevada have proper jurisdiction over the divorce proceedings. This means that at least one of the parties to each Ex parte proceeding must have a Bona fide domicile within Nevada for what length of time Nevada may prescribe.

The court stated:

'The State of domiciliary origin should not be bound by an unfounded, even if not collusive, recital in the record of a court of another State. As to the truth or existence of a fact, like that of domicile, upon which depends the power to exert judicial authority, a State not a party to the exertion of such judicial authority in another State but seriously affected by it has a right, when asserting its own unquestioned authority, to ascertain the truth or existence of that crucial fact.'

In effect, the court held that a state decree of divorce may be collaterally impeached in another state for want of jurisdiction, though the record purports to show jurisdiction.

In Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948), and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 1097, 92 L.Ed. 1451 (1948), the Supreme Court established the rule that when a defendant has appeared and participated, and the parties were given full opportunity to litigate the issues, it was not later open to such defendant to make a collateral attack on the divorce decree. The same view is expressed in Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951), and Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951).

In the recent case of Parata v. Parata, 179 A.2d 723, decided on April 13, 1962, the Municipal Court of Appeals for the District of Columbia refused to recognize an Alabama divorce obtained by a District of Columbia husband who stayed in Alabama 'only long enough to sign a complaint and affidavit.' (at page 726). The court concluded that the divorce was subject to the wife's collateral attack in the District of Columbia, even though she appeared generally and signed a waiver admitting her husband was an Alabama resident. The court observed (at p. 725) that 'Full faith and credit is by no means universal or automatic.' The court also held that

'Here there was not such actual appearance and 'participation' by the wife as to justify recognition of the decree which followed. The rule announced in Sherrer and Coe does not require it, and we hold that for lack of jurisdiction over the Res, or over either of the parties, the Alabama decree is subject to challenge in this jurisdiction.' (at page 726).

In White v. White, 150 F.2d 157, 80 U.S.App.D.C. 156 (D.C.Cir.1945), the court held that a Florida divorce decree obtained by the husband who went to Florida solely for the purpose of obtaining the divorce, and with no Bona fide intention of remaining therein permanently or indefinitely, was not entitled to full faith and credit in the District of Columbia, so as to bar the wife's action for maintenance. And in Ryan v. Ryan, 139 F.Supp. 98 (D.C.C.1954), affirmed 230 F.2d 838, 97 U.S.App.D.C. 288 (D.C.Cir.1956), the court added that when a claim of Bona fide domicile is betrayed by the evidence, it has been a consistent policy of the District of Columbia to refuse recognition to the divorce. Hobbs v. Hobbs,...