Raspa v. Raspa

• Decision Date: 04 November 1985
• Citation: 504 A.2d 683,207 N.J.Super. 371
• Parties: Maureen RASPA, Plaintiff, v. Nicholas RASPA, Defendant.
• Court: New Jersey Superior Court

Page 371

207 N.J.Super. 371

504 A.2d 683

Maureen RASPA, Plaintiff, v. Nicholas RASPA, Defendant.

Superior Court of New Jersey, Chancery Division Family Part, Bergen County.

Nov. 4, 1985.

Harvey K. Pearlman, Rutherford, for plaintiff (Friedman, Kates, Pearlman & Fitzgerald, Rutherford, attys.)

Anthony C. Sartori, Totowa, for defendant.

KRAFTE, J.S.C.

The unique set of facts in this divorce action presents myriad matrimonial issues, resolution of which turn on the threshold question of whether the parties' marriage is valid, or whether it was null and void from its inception because of the alleged invalidity of plaintiff's prior Mexican divorce. A determination that the marriage is invalid will render the remaining questions of equitable distribution moot.

The parties to this action met in 1968, each having been previously married. Plaintiff, Maureen Raspa, was divorced from her prior husband, Daniel Donohue, by a Mexican divorce decree. She had custody of their two children, Terence, age three, and Sean, five-months old. Defendant, Nicholas Raspa, was divorced from his first wife by a decree issued in the State of Alabama, and he also had custody of the child of that marriage, Mark, age four.

In the early part of 1969, the parties began looking at houses for sale, which eventuated in Nicholas' purchasing a home in Rutherford, New Jersey, and title was closed on May 1. Shortly thereafter, on May 4, 1969, the parties were married and began residing in the Rutherford home with their children.

Sometime in mid-1972, Nicholas became concerned about the validity of his earlier divorce, after reading several newspaper The parties continued to live with one another and the three children, and in 1976 Maureen became pregnant with Nicholas' child. Before the birth of their child, the parties decided to engage in a second marriage ceremony, which took place on December 28, 1976. Their daughter, Nicole Raspa, was born March 17, 1977.

articles which reported the illegality of some Alabama divorces. After consulting with his attorney, Nicholas procured a second divorce decree from his first wife, this time in New Jersey, on June 27, 1972.

Sometime thereafter, discord arose between the parties, and plaintiff filed for divorce on the ground of extreme cruelty in June 1984. Defendant filed an answer and counterclaim, seeking an annulment of the marriage or, in the alternative, a divorce.

This Court is now faced with the following questions: (1) does a valid marriage exist between the parties; (2) if so, what are the relevant dates for inclusion of assets in the marital estate for purposes of equitable distribution; and (3) is the marital home, which was purchased by defendant before the marriage, subject to equitable distribution? As previously stated, a finding of invalidity of the marriage will obviate the need to address the remaining issues.

Defendant contends that plaintiff's prior divorce was invalid, and hence the parties' marriage was null and void from its inception. Upon that premise, defendant asserts that equitable distribution does not apply. In the alternative, he argues that should this court find plaintiff's Mexican divorce to be valid, then the appropriate dates for acquisition of assets subject to equitable distribution are December 28, 1976 and June 1982. Defendant contends that the marital estate should include only those assets which were acquired after their second marriage ceremony, because even if plaintiff's divorce were valid, his Alabama decree was not and thus he was under a disability to marry in 1969. He argues that it was only after he obtained a Plaintiff, on the other hand, asserts the validity of both her Mexican divorce and subsequent marriage to defendant. She argues that even if this court finds her prior divorce to be invalid, defendant is estopped from denying the validity of the parties' marriage. Finally, plaintiff claims that she is entitled to one-half interests in the Rutherford home and all other assets acquired between May 4, 1969, the date of their first ceremony, and June 1984 when she filed her complaint for divorce.

second divorce from his prior wife and went through a second ceremony with plaintiff that their marriage actually began. The terminal date of June 1982 is urged by defendant as being the date when the marital relationship was no longer viable, the parties having then moved into separate bedrooms in the marital residence, communicating only minimally. He further asserts that the Rutherford home is not subject to equitable distribution, having been purchased by defendant prior to the marriage.

I. VALIDITY OF THE PARTIES' MARRIAGE

Initially this court must decide which party carries the burden of proving the (in)validity of the marriage.

Defendant contends that the burden rests with plaintiff to prove that a valid marriage exists, in order to obtain the relief she seeks. He maintains that plaintiff has not proven to this court that her Mexican divorce was valid, and thus has failed to demonstrate the existence of a valid marriage between the parties.

In contrast, plaintiff asserts that once she has proven that there was a marriage between the parties, a heavy burden is cast upon defendant to prove the invalidity thereof by clear and convincing evidence. Plaintiff maintains that this burden of Introduced into evidence at trial were the following documents: (1) final divorce decree between Daniel Donohue and plaintiff issued by the Court of First Instance of Calpulalpan, State of Tlaxcala, Mexico, dated July 20, 1967; (2) certificate of marriage between the parties of May 4, 1969; (3) final judgment of divorce between defendant and his first wife, dated July 27, 1972, issued by the Superior Court of New Jersey; and (4) certificate of marriage between plaintiff and defendant, dated December 28, 1976.

proof has not been met, and that in any event, defendant is estopped from denying the validity of their marriage.

With regard to the Mexican divorce, plaintiff testified that she never received a summons and complaint, never appeared in any proceeding in Mexico, and received the final decree in the mail. She stated that she was told by someone that notice of the action was published in the newspaper.

Plaintiff further testified that her former husband Donohue told her that he personally appeared before the Mexican court, although the divorce decree states only that he submitted to the jurisdiction and competence of the court "through his juridical representative." Throughout the document plaintiff's and her children's names are incorrectly stated to be "Maurin" for Maureen, "Edward Tenence" for Terence, and "Sharon Christopher" for Sean. It is also stated in the decree that the then Mrs. Donohue did not answer the complaint, although she was summoned "by means of edicts that were published according to the law."

Defendant testified that in no way did he participate in plaintiff's Mexican divorce, not having met her until at least a year later. When asked what his understanding was as to plaintiff's marital state when the parties met, defendant answered "she was divorced," which he based upon the Mexican document. Having had no legal training as to the laws of the State of New Jersey in 1969, defendant thus testified that he Both parties testified that they were fully aware of each other's marital history prior to their 1969 wedding, and brought with them their respective divorce documents when they obtained their first marriage license.

had no knowledge at that time that plaintiff was under a disability to enter a marriage in this State.

Initially this court finds that the law of this State does not require plaintiff to prove the validity of her prior divorce or the parties' marriage, as defendant urges. Rather, once plaintiff shows that the parties were in fact married, the burden of proving invalidity shifts to defendant, and it must be met by clear and convincing evidence. The Supreme Court enunciated this proposition most clearly in Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031 (1982), wherein it was held that

... irrespective of the factual context in which the issue may arise, the last of two or more marriages is presumptively valid. The presumption of validity may be overcome only by clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was not terminated by death or divorce before the latest marriage ... [F]urther, ... where one attacks the validity of a divorce obtained in a foreign state or country, the challenger must prove all asserted defects, including lack of jurisdiction in the foreign court. In all respects, the burden rests not upon the party defending the most recent marriage, but upon the challenger to demonstrate the invalidity of the prior divorce. [at 538, 443 A.2d 1031]

Having before it in evidence not one, but two certificates of marriage between these parties, this court finds that the burden is upon defendant to overcome this presumption of validity. Defendant fails to do so.

Defendant relies on Warrender v. Warrender, 79 N.J.Super. 114, 190 A.2d 684 (App.Div.1963), aff'd 42 N.J. 287, 200 A.2d 123 (1964), for the proposition that the Mexican court's lack of jurisdiction resulted in an invalid divorce decree which was, in effect, a sham. In some respects, the Mexican divorce here in issue resembles that which the Warrender court found to be invalid, particularly in that there was not "the faintest pretense of adjudication by the decree of either residence or domicile of either of them in Mexico when rendered." Id. at 118, 190 A.2d 684. It is undisputed that In face of such doubt, however, this court finds that defendant has not demonstrated by the requisite clear and convincing evidence that the divorce was invalid and should be given no effect. The proofs at trial lacked any showing that Mr. Donohue did not go to Mexico, or that he did...