Meeker v. Meeker

• Decision Date: 03 June 1968
• Docket Number: No. A--22,A--22
• Citation: 243 A.2d 801,52 N.J. 59
• Parties: Fortune Bentley MEEKER, Plaintiff-Appellant, v. Lincoln Voght MEEKER and Aileen Lumley, also known as Aileen Lumley Meeker and Mrs. L. V. Meeker, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 59

52 N.J. 59

243 A.2d 801

Fortune Bentley MEEKER, Plaintiff-Appellant, v. Lincoln Voght MEEKER and Aileen Lumley, also known as Aileen Lumley Meeker and Mrs. L. V. Meeker, Defendants-Respondents.

No. A--22.

Supreme Court of New Jersey.

Argued Oct. 10, 1967.

Decided June 3, 1968.

Milton T. Lasher, Hackensack, for appellant.

Robert P. German, Newark, for respondents (Clapp & Eisenberg, Newark, attorneys).

The opinion of the court was delivered by

GOLDMANN, J. (temporarily assigned).

This appeal challenges the rule laid down in Floyd v. Floyd, 95 N.J.Eq. 661, 124 A. 525 (E. & A. 1924), and Morrissey v. Morrissey, 1 N.J. 448, 64 A.2d 209, 12 A.L.R.2d 378 (1949), that our courts will not entertain a direct attack on the validity of a foreign divorce decree when, at the time the decree was rendered, neither spouse was a resident of this State.

Plaintiff, a bona fide resident of New Jersey, brought a declaratory judgment action in the Chancery Division seeking to have her marital status clarified and her husband's Ex parte Mexican divorce declared invalid, joining him and his putative second wife, Aileen Lumley (Meeker), as defendants. They moved to dismiss the complaint for lack of jurisdiction over their persons and the subject matter of the action. The trial judge, applying the Floyd-Morrissey rule, granted the motion on the latter ground. The order was affirmed by the Appellate Division in a Per curiam opinion.

In her appeal to this court plaintiff argues that application of the rule deprives her of due process, equal protection of the law, and the privileges and immunities guaranteed under the United States Constitution. Defendant moved to dismiss the appeal and decision thereon was reserved pending full argument.

I

The following facts are culled from the allegations contained in the complaint and affidavits filed by the parties.

Plaintiff and defendant Lincoln Voght Meeker, both then domiciled in India, were married in Bombay in July 1944. A son was born in November 1945. On August 8, 1950 the Meekers, then residing in Manila, P.I., entered into a separation agreement which obligated Meeker to support plaintiff and the son. The agreement provided that

'The Husband and the Wife shall continue to live separate and apart from each other, free from any interference, restraint and control by the other as fully as if she or he were sole and unmarried. For the rest of their lives neither party shall molest or interfere with the other in any way or seek to compel the other to cohabit with him or her, or restrict or influence the free choice of domicile by the other.'

Plaintiff was to have custody of the boy until he attained his majority.

It appears that plaintiff returned to Bombay and eventually became domiciled in London, England. Meeker continued to live in Manila and alleges that he later was domiciled in Singapore. The couple continued to live apart until the fall of 1957 when they were temporarily reconciled in London. Meeker left London in October 1957, promising to return in January 1958. He did not do so. Instead, he instituted divorce proceedings in the State of Chihuahua, Mexico. His residence or domicile in the interim is unclear.

Plaintiff was never served with process or notice of any kind in the Mexican divorce proceedings. She did not participate in them or submit to the jurisdiction of the Mexican court. Meeker obtained his divorce decree on March 17, 1958. On the very same day he married defendant Aileen Lumley in Arizona.

Meeker and his bride moved to Rio de Janeiro, Brazil, arriving there April 28, 1958. Plaintiff came to New Jersey from London in the fall of 1958, and has resided here ever since.

In her complaint and supporting affidavit plaintiff alleged that Meeker's legal residence at the time of the 1958 Mexican divorce proceeding was and continued to be the Williamsburg Apartments in Westfield, N.J., where his mother has lived since April 1958. Plaintiff represented that defendant had declared that place to be his legal residence when he applied to the United States Consul General at Sao Paulo, Brazil, to be registered as a United States citizen. Further, in his application to the New Jersey Director of Motor Vehicles for a driver's license in April 1958 he had certified that he resided at the Williamsburg Apartments--a representation he repeated when he renewed his driver's license in March 1961, and again in March 1964. Defendants, on the other hand, presented several affidavits from themselves and others indicating that at no time was either of them domiciled or resident in New Jersey.

Plaintiff initially sought to effect service by having the sheriff hand a copy of the summons and complaint to Meeker's mother at her Westfield apartment. Defendants moved to dismiss the complaint for lack of jurisdiction over their persons and insufficiency of process and service. The motion was denied but the service set aside as insufficient. Plaintiff then obtained an order for publication and substituted service. Defendants moved to vacate the order and to dismiss the complaint with prejudice on the grounds of lack of jurisdiction over their persons and over the subject matter. On the basis of the affidavits on file the trial judge found there was no genuine issue of any material fact, it 'palpably appearing' that none of the parties was domiciled in New Jersey when the Mexican decree was rendered. In light of 'the settled law' he concluded that since plaintiff's action was a direct attack on the Mexican divorce and neither party had been domiciled in this State at the time the decree was entered, the court was without jurisdiction over the subject matter.

Plaintiff raised no constitutional issue at the trial level. In the Appellate Division, however, she asserted her present constitutional challenge to the Floyd-Morrissey rule. In its Per curiam affirmance the court first stated that the trial judge was justified in holding that the affidavits palpably established the absence of any genuine issue with respect to the material fact of absence of domicile in New Jersey by either plaintiff or her husband at the time of the Mexican divorce. It rejected plaintiff's contention, not renewed before this court, that the instant case is distinguishable from the Floyd and Morrissey precedents because it concerns a foreign country decree rather than a sister state judgment. The rationale of those cases, it said, did not depend upon solicitude for the integrity of judgments of sister states as distinguished from foreign sovereignties; rather, jurisdiction was found wanting as a matter of public policy.

As for the constitutional challenge, the Appellate Division observed that since plaintiff had not put that claim in issue below, it was not available on appeal. The court nonetheless went on to say that the claim was without merit because the rule in question did not, as plaintiff asserted, arbitrarily discriminate between prospective suitors on the basis of when they became residents of New Jersey; even a nonresident might directly attack a foreign divorce judgment if either of the marital partners was domiciled here when that judgment was entered.

II

Defendants advance two grounds in their motion to dismiss this appeal: (1) plaintiff's failure to raise the constitutional question before the trial court, and (2) the absence of a substantial constitutional question.

This court may, but need not, accept a constitutional issue not raised below. Lettieri v. State Board of Medical Examiners, 24 N.J. 199, 206, 131 A.2d 518 (1957). Exceptions to this rule are made when the questions raised on appeal go to the jurisdiction of the court below, or when they relate to matters of great public concern or important questions of public policy. Fischer v. Bedminster Tp., 11 N.J. 194, 201, 93 A.2d 378 (1952); Morin v. Becker, 6 N.J. 457, 460, 79 A.2d 29 (1951); Roberts Electric, Inc. v. Foundations & Excavations, Inc., 5 N.J. 426, 430, 75 A.2d 858 (1950). The court will hear such questions where 'it is manifest that justice requires consideration of an issue central to a correct resolution of the controversy and the lateness of the hour is not itself a source of countervailing prejudice, * * *.' In re Appeal of Howard D. Johnson Co., 36 N.J. 443, 446, 177 A.2d 756, 758 (1962).

Plaintiff risked possible dismissal of this appeal by failing to heed prior judicial warnings as to the proper procedure to be followed when the constitutional ground asserted may be found to be insubstantial. Thus, in Tidewater Oil Co. v. Mayor, etc., of Borough of Carteret, 44 N.J. 338, 209 A.2d 105 (1965), we observed that

'* * * in any case where the right to appeal from the Appellate Division is not clear beyond doubt, the proposed appellant should petition for certification, outlining fully his claim to an appeal as of right, as well as any other appropriate reasons indicating why this court should allow further review even if it believes that the case does not present a sufficient constitutional question * * *. If a proper constitutional question does appear, the rules provide that 'certification shall be granted.' R.R. 1:10--4(e). If it does not, an appeal may be allowed through certification for other reasons. In no case will a litigant suffer by falling between the millstones and this court will be better able to fulfill its proper function.' (at page 344, 209 A.2d at page 108)

We see no need, however, of passing upon plaintiff's constitutional challenge. The question of a direct attack on a foreign divorce in a case where neither spouse was a New Jersey resident at the time of the decree involves a jurisdictional doctrine supposedly dictated by significant policy considerations. Review of that policy is a matter of sufficient importance to warrant our accepting the appeal as though a petition for certification had been granted, so that we may reappraise the judicially imposed rule of Floyd-Morrissey. Cf. ...