Kugler v. Haitian Tours, Inc.

• Citation: 120 N.J.Super. 260,293 A.2d 706
• Parties: George F. KUGLER, Jr., Attorney General of New Jersey, Plaintiff, v. HAITIAN TOURS, INC., a New Jersey corporation, et al., Defendants.
• Decision Date: 27 July 1972
• Court: Superior Court of New Jersey

Page 260

120 N.J.Super. 260

293 A.2d 706

George F. KUGLER, Jr., Attorney General of New Jersey, Plaintiff, v. HAITIAN TOURS, INC., a New Jersey corporation, et al., Defendants.

Superior Court of New Jersey,

Chancery Division.

July 27, 1972.

Douglas J. Harper, Deputy Atty. Gen., for plaintiff.

Nolan & Lynes, Newark (Edward S. Snyder, Union), for New Jersey State Bar Association.

Stern & Dubrow, South Orange (Morris Stern, South Orange), for defendants.

MEHLER, J.S.C.

In this action brought by the Attorney General pursuant to Section 8 of the Consumer Fraud Act, N.J.S.A. 56:8--8, and as an officer of the court, he seeks to enjoin defendants from engaging in what he contends are unlawful practices proscribed by Section 2 of the Act. He also asks for restoration of moneys to consumers and civil penalties as authorized by Sections 8 and 13.

The New Jersey State Bar Association has been permitted to intervene in the action and has filed a complaint which charges defendants with the unauthorized practice of law. It seeks to enjoin defendants from acts which it says constitute the practice of law.

On this continued return day of an order to show cause the Attorney General seeks final summary judgment, as is permissible in an appropriate case under Section 8 of the Act and Rules 4:67--1, 2 and 5, and failing that, seeks interlocutory restraints pending plenary disposition of his claim. For the purpose of the motion he relies on a transcript of testimony of the individual defendants and on the affidavit of John P. Legnaioli, an investigator of the Division of Consumer Affairs, the latter only to the extent of showing the papers that are made available by defendants to consumers. For the purpose of this motion the Attorney General does not rely on any inferences which may be drawn from the conversation which Legnaioli had with defendant Millano as set out in the former's affidavit. Accordingly, the material facts are not in dispute.

Defendant Haitian Tours, Inc. is a New Jersey corporation whose business is operated by the individual defendants from an office in East Orange. Since on or about December 1, 1971, defendants have been selling a Haitian travel package, which consists of three elements, nmamely, transportation to and from Haiti, lodging and meals for one or two days at a hotel there, and preparations for the securing of a Haitian divorce. The arrangements include reference to a Haitian guide and lawyer.

The contemplated divorce is one obtained in either a one party or a two party proceeding. A two party proceeding is one in which one spouse, who becomes the petitioner, goes to Haiti and submits to a Haitian court the consenting spouse's waiver, submission to jurisdiction, and power of attorney which has been notarized, a letter of information and affidavit of marriage. The form of power of attorney uniformly provides for the appointment of Marc L. Raymond as attorney for the consenting spouse 'with all necessary power to accomplish the special purpose' of the power.

A one party divorce occurs when the other spouse will not consent to the proceedings. The procedure is the same as in a two party case, except that a power of attorney is not obtained and service of process is presumably effected extraterritorially.

In short, the two party divorce is what is commonly known to us as a bilateral divorce and a one party divorce is commonly known to us as a unilateral divorce.

The cost of a package for a unilateral divorce is $1125 and for a bilateral divorce is $1275. In each instance the consumer or applicant pays $425 to Haitian Tours; the balance is paid to its representative in cash upon arrival in Haiti and before the court appearance. The fees paid are allocated as follows: air fare $198, lodging $84, consultations and document reproduction fee $25, referral fee $200, legal and administrative fees for services rendered in Haiti $538 in case of a bilateral divorce, and $768 in case of a unilateral divorce. The referral fee is paid to Haitian Tours in those cases where it refers the applicant directly to its Haitian representative and is said to be paid by a Haitian organization.

When one whose interest in obtaining a Haitian divorce consults defendants he pays a $25 fee for a consultation and printed material. He is advised to take the material home, consult with his attorney, and to return if he wishes to use defendant's services. The material consists of various papers, copies of which are attached to an affidavit made by Investigator Legnaioli. In general, they consist of the following: a letter of information on which the applicant is to furnish requested information about the spouses, the date of marriage, names and custody of minor children, and whether there is a separation agreement, and instructions as to what documents must be brought to court; a form of certification to be executed by the applicant attesting to the fact and place of marriage, a power of attorney to be executed by the defendant spouse appointing Mr. Raymond to accept service and appear for him; a form of the proposed judgment of divorce; purported excerpts of the Haitian Divorce Law; a copy of an article published in the New York Law Journal entitled 'Haitian, Dominican Laws of Divorce Evaluated', by a New York lawyer, in which he analyzes the Haitian divorce law and expresses an opinion that a Haitian divorce decree is entitled to recognition by the New York courts to the same extent 'as the New York courts extended to divorce decrees of (Mexico)'; a paper entitled 'General Information on Haitian Divorces' which describes one and two party divorces, states that 'both of these situations can be resolved in the courts of Haiti, providing that certain definite procedures are followed' and further says that where one spouse won't co-operate 'service of process may be had on such a spouse as provided in' the Haitian divorce law. The statement proceeds as follows: 'While our Haitian attorney does not recommend this type of Divorce, as he believes it to be a voidable decree, many individuals to avail themselves of this as a last resort, and with the hope that the Defendant will not bring an action at a later date to have the Decree set aside.' The papers bear the legend 'Consult your attorney.'

Defendants make the necessary arrangements for an applicant when he returns prepared to buy the package and pays for it. Until restrained by this court, defendants sold about 60 packages, some 15 to 20 of them to New Jersey residents.

N.J.S.A. 56:8--2 provides, in relevant part, as follows:

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damage thereby, is declared to be an unlawful practice; * * *.'

By definition, the term 'merchandise' includes any services or anything offered, directly or indirectly to the public. N.J.S.A. 56:8--1(c).

Section 8 authorizes the Attorney General to seek and obtain in a summary action an injunction prohibiting one engaged in an unlawful practice from continuing such practice.

The Attorney General contends that the practice of defendants of offering and selling the Haitian divorce package is an unlawful practice as defined by Section 2, in that the divorces contemplated and sold in the package are null and void and are not as a matter of law entitled to recognition in the courts of this State. He also argues that because the decrees are invalid the practice directly fosters the procurement of divorces which as a matter of common law are frauds upon the courts of this State and undermine the integrity of the courts and the State's vital interest in the marital relationships of its domiciliaries.

Recognition of a divorce decree of a foreign country rests on the doctrine of comity controlled by the public policy of the State whose recognition is invoked. The full faith and credit clause of the Constitution has no application. Tonti v. Chadwick, 1 N.J. 531, 64 A.2d 436 (1949). 'Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws.' Fantony v. Fantony, 21 N.J. 525, 533, 122 A.2d 593, 596 (1956). 'The recognition of a judgment of a foreign court under the principle of comity is subject generally to two conditions: (1) that the foreign court had jurisdiction of the subject matter; (2) that the foreign judgment will not offend the public policy of our own State.' Id. at p. 533, 122 A.2d at p. 596.

Haitian law does not require domicile of either of the parties to the divorce. Only a fleeting transitory presence of one of them is all that is required. This is confirmed by the fact that the package provides...