Kazin v. Kazin

• Citation: 391 A.2d 536,161 N.J.Super. 174
• Parties: Clara KAZIN, Plaintiff-Appellant and Cross-Respondent, v. Michael KAZIN, Defendant-Respondent and Cross-Appellant.
• Decision Date: 02 August 1978
• Court: New Jersey Superior Court – Appellate Division

Page 174

161 N.J.Super. 174

391 A.2d 536

Clara KAZIN, Plaintiff-Appellant and Cross-Respondent, v. Michael KAZIN, Defendant-Respondent and Cross-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued May 23, 1978.

Decided Aug. 2, 1978.

Robert Diamond, Union, for plaintiff-appellant (Diamond, Grossman, Pitman & Anzaldi, Union, attorneys).

Seymour Margulies, Jersey City, for defendant-respondent (Brigadier & Margulies, Jersey City, attorneys; Jack Jay Wind, Jersey City, on the brief).

Before Judges LORA, SEIDMAN and MILMED.

The opinion of the court was delivered by

SEIDMAN, J. A. D.

This appeal presents the question of whether, on the facts of this case, plaintiff, who married defendant after obtaining a Mexican divorce from her husband, is barred by existing law from maintaining an action for divorce against defendant based in part on his alleged desertion, or, in the alternative, for separate maintenance. The trial judge issued a letter opinion in which he concluded that since the Mexican divorce was void, plaintiff was not entitled either to a dissolution of the purported marriage to defendant or to support from him, and judgment was entered accordingly. ¹ He queried, however, whether "with the more liberal policy toward divorce as evidenced by the Divorce Reform Act, Justice Wachenfeld's dissent in Tonti (V. Chadwick, 1 N.J. 531, 64 A.2d 436 (1949)) should now be the law."

Plaintiff married Jesse L. Liss in 1953 in Brooklyn, New York. They subsequently took up residence in this State. Four sons were born of the marriage, the eldest of whom is now about 17 years of age. By 1969 Liss had left plaintiff and was residing in New York. His requests for a divorce were refused by plaintiff. In February 1969 plaintiff met defendant who, a few months later, proposed marriage. This led to plaintiff's obtaining a Mexican divorce in circumstances that are disputed by the parties.

According to an affidavit filed by plaintiff in the proceedings below, the plan for a Mexican divorce originated with defendant. She stated that he arranged a conference in Newark at the office of his attorney, Milton Yormark, at which she was present along with defendant and Liss. She said that the lawyer assured them that a Mexican divorce would be valid. After consulting with his own attorney in New York, Liss agreed to sign all papers purportedly necessary to confer jurisdiction on the Mexican court. Defendant then made arrangements for plaintiff to go to Mexico, paying all the expenses, and he accompanied her there. A divorce decree was entered on May 27, 1969.

Liss filed a corroborating affidavit in which he confirmed that defendant was interested in seeing to it that there be a divorce as soon as possible. He said further that his own attorney convinced him that Mexican divorces were valid and would be recognized in this country provided that both parties appeared in the Mexican proceedings. Liss also stated that he remarried after plaintiff obtained the divorce decree.

Defendant maintained below in an affidavit that he was approached by Liss and the latter's attorney with respect to the matter and that it was Liss' attorney who made the arrangements for the Mexican divorce. He stated that he accompanied plaintiff to El Paso, and that she was then transported to Mexico, returning later the same morning after the entry of the divorce decree.

Plaintiff and defendant were married in this State on June 18, 1969. They lived together until July 1976, when defendant moved out of the marital residence. For a short time, defendant paid plaintiff $250 a week for her support. The payments were subsequently reduced and finally discontinued.

In October 1976 plaintiff instituted her action for separate maintenance and divorce. Defendant filed an answer in which, among other things, he denied that the parties were married to each other. By way of counterclaim, he sought an annulment of "the alleged marriage" on the ground that plaintiff had obtained a fraudulent Mexican divorce and that her marriage to Liss was still in full force and effect.

Subsequently, a consent order was entered permitting plaintiff to include in her answer to the counterclaim the defenses of estoppel, laches, fraud and unclean hands. Defendant was permitted therein to withdraw his counterclaim and, instead, to incorporate the allegations thereof into the affirmative defenses contained in his answer to the complaint. By another order, plaintiff was awarded Pendente lite support in the sum of $155 per week.

It appears that counsel for both parties requested the court to decide on the basis of the pleadings and affidavits on file "whether or not defendant may raise the question of the invalidity of the Mexican divorce." The issue posed by the trial judge in his letter opinion was whether plaintiff would be "permitted a divorce with the equitable distribution and possible alimony which may follow," or whether she would "be unsuccessful because her inability to prove a valid marriage." He did not mention the alternate cause of action for separate maintenance. As indicated above, the trial judge determined that by reason of the void Mexican divorce plaintiff could not be granted the relief sought, despite a strong feeling on his part that since defendant was equally at fault with respect to that divorce, he "should not be permitted to avoid his marital obligations" by taking "a position inconsistent with his past actions."

There can be no doubt that the Mexican divorce decree in this case was utterly void for want of jurisdiction of the subject matter. Tonti v. Chadwick, supra, 1 N.J. at 535, 64 A.2d 436. While the decree was not of the "mail order" variety, it is well-settled that a one-day appearance by a party entitles the decree to no greater recognition. Warrender v. Warrender, 79 N.J.Super. 114, 118, 190 A.2d 684 (App.Div.1963, aff'd 42 N.J. 287, 200 A.2d 123 (1964); Cf. Kugler v. Haitian Tours, Inc., 120 N.J.Super. 260, 265, 293 A.2d 706 (Ch.Div.1972). Nor do we discern in the decree in this case any semblance of validity because it recites that "the wife proved to be domiciled in this City by presenting the certificate of her inscription in the Municipal Registry of this city at the time she filed this proceeding and because both parties submitted expressly to the jurisdiction of the Court * * *." The parties agree that plaintiff was domiciled in New Jersey, that Liss was living in New York at the time, and that plaintiff went to Mexico with the sole purpose of obtaining a divorce. It was stressed in Warrender v. Warrender, supra, that

(a)s we are here dealing with the judgment of a foreign country, not a sister state, the full faith and credit clause of the Federal Constitution is not applicable, but rather principles of comity. Such principles will not justify recognition of this divorce by our State because of its offensiveness to our public policy and statutes. * * * (79 N.J.Super. at 119, 190 A.2d at 687)

We are not faced with the constitutional imperative of "according * * * full faith and credit in practically conclusive measure to divorce decrees of sister states where both parties appear in the proceedings, even though overtones of collusion are present." Warrender v. Warrender, supra at 121, 190 A.2d at 688; Cf. Schlemm v. Schlemm, 31 N.J. 557, 565-572, 158 A.2d 508 (1960), and see Woodhouse v. Woodhouse, 11 N.J. 225, 228, 94 A.2d 301 (1953).

Plaintiff does not claim that her Mexican divorce decree was valid. She contends that (1) defendant, "by his conduct in originating, directing, aiding and participating with plaintiff's Mexican divorce and by his marriage to the plaintiff thereafter with full knowledge as to the circumstances surrounding said Mexican divorce is estopped and barred by unclean hands from denying the validity of said divorce (and) should be compelled to provide support for the plaintiff"; (2) defendant is barred from raising the issue of the validity of plaintiff's prior Mexican divorce because he had allowed an unreasonable amount of time to pass before raising said position, and (3) plaintiff is entitled "to support Pendente lite (Sic )" because of the presumption of the validity of her marriage to the defendant. ²

The equitable doctrines of unclean hands and estoppel must be viewed in proper perspective. They have been applied by the courts of this State in appropriate cases to preclude relief or to bar the assertion of a defense because of a party's participation or acquiescence in the procurement of a fraudulent or illegal divorce. See Untermann v. Untermann, 19 N.J. 507, 516-519, 117 A.2d 599 (1955); Tonti v. Chadwick, supra 1 N.J. at 536, 64 A.2d 436; Warrender v. Warrender, supra, 79 N.J.Super. at 119, 190 A.2d 684.

If the outcome of this case were to depend upon defendant's conduct, we would have little difficulty in concluding that he should be estopped from assailing the Mexican decree. The law is clear that "(a) person may be precluded from questioning the validity of a divorce decree if, under all the circumstances, his conduct has led to the obtaining of the decree or for any other reason has been such as to make it inequitable to permit him to deny its validity." Flammia v. Maller, 66 N.J.Super. 440, 446, 169 A.2d 488, 491 (App.Div.1961). If defendant did not actually plan and arrange the obtaining of the Mexican divorce, he certainly participated in all of its aspects, and reaped the benefit of it by then marrying the person whose divorce he helped procure. Cf. Woodhouse v. Woodhouse, supra, 11 N.J. at 229, 94 A.2d 301.

But we do not see this case as turning on the issue of defendant's estoppel to deny the validity of the Mexican divorce. Our primary concern is, rather, whether, despite such estoppel, plaintiff may nevertheless be unable for other reasons to obtain the relief that she seeks I. e., either a judgment of divorce or, alternatively, separate maintenance. While the doctrine of...