Schlemm v. Schlemm

• Decision Date: 22 February 1960
• Docket Number: No. A--53,A--53
• Citation: 158 A.2d 508,31 N.J. 557
• Parties: Christine Madison Spearing SCHLEMM, Plaintiff-Respondent-Cross-Appellant, v. William SCHLEMM, Defendant-Appellant-Cross-Respondent.
• Court: New Jersey Supreme Court

Page 557

31 N.J. 557

158 A.2d 508

Christine Madison Spearing SCHLEMM Plaintiff-Respondent-Cross-Appellant, v. William SCHLEMM, Defendant-Appellant-Cross-Respondent.

No. A--53.

Supreme Court of New Jersey.

Argued Dec. 7 and 8, 1959.

Decided Feb. 22, 1960.

Leon S. Milmed, Newark, argued the cause for plaintiff-respondent-cross-appellant (Milmed & Rosen, Newark, attorneys; John C. Stritehoff, Jr., Union City, on the brief).

Otto E. Riemenschneider, Union City, argued the cause for defendant- appellant-cross-respondent (Charles F. Krause, III, Union City, on the brief).

The opinion of the court was delivered by

JACOBS, J.

The parties cross-appealed from a judgment entered in the Chancery Division. We certified their appeals on our own motion while they were pending in the Appellate Division.

The parties were married in 1933 and lived together in New Jersey until 1953. No children were born of their marriage. In 1952 the plaintiff-wife filed her complaint in the Chancery Division seeking a divorce and support and maintenance and the defendant-husband filed his answer and counterclaim seeking a divorce. On July 22, 1953 they both appeared in the Chancery Division with their counsel who advised the court that the parties had reached a mutual understanding which was then fully set forth in the record and which was to the following effect: The complaint and counterclaim in the Chancery Division were to be dismissed; the defendant agreed to convey to the plaintiff his interest in property located at 639 Ocean Avenue, Sea Girt, New Jersey and owned by the parties as tenants by the entirety; the defendant agreed to give the plaintiff a bill of sale for the contents of the house located at Sea Girt; the defendant agreed to give the plaintiff $3,000 in cash, she in turn was to waive any rights to the personal property and contents in the house located at Columbia Terrace, Weehawken, New Jersey and owned by the parties as tenants by the entirety, and no conveyance or change of any kind was to be made in the title to the Weehawken property; the defendant agreed to transfer to the plaintiff a Cadillac automobile and to provide and maintain proper insurance on it; and the defendant 'agreed to provide for the wife to maintain the properties and upkeep and further carrying charges just in the manner that he has been doing up to the present date so that she will be provided for in the same manner and to the same degree as she has been provided for by him up to this time'. Immediately after the mutual understanding was set forth in the record the court requested that counsel present 'a conformable Order with this conclusion to dismiss'; the formal order was not actually entered until September 25, 1953. It bore consents by counsel for both parties, stated that the parties had personally appeared before the court on July 22, 1953, had advised through their counsel that they had reached an amicable settlement and had embodied the terms of their settlement in the record, and adjudged that the complaint and counterclaim 'be and the same are hereby dismissed, without prejudice, as of July 22nd, 1953'.

After leaving the courtroom on July 22, 1953 the defendant transferred his interest in the Sea Girt property to the plaintiff and gave her $3,000 in cash; apparently the Cadillac automobile was also duly transferred to her. On the same day Mr. Robert Spearing, the plaintiff's son by a previous marriage, placed approximately $50,000 belonging to the defendant in a safe deposit box in the Commonwealth Trust Company. On July 25, 1953 the defendant left for Reno, Nevada and shortly thereafter he consulted Mr. Souter, a Nevada attorney, with regard to a divorce. Under date of July 30, 1953 Mr. Souter wrote to the plaintiff advising that the defendant had consulted him and enclosing a power of attorney by which the plaintiff could authorize an attorney to appear on her behalf. Mr. Souter's letter stated that he was suggesting that she select Mr. Johnson as her attorney on the assumption that she was not familiar with Nevada attorneys but that she should feel free to substitute 'the name of any other attorney in Reno'. Mr. Souter's letter concluded with the comment that if she desired 'to seriously contest any action for divorce which Mr. Schlemm may institute here' then she should disregard his letter and that 'in any event, I strongly recommend that you take my letter and the Power of Attorney to competent counsel and be advised by him'. Under date of August 1, 1953 the plaintiff wrote to Mr. Souter stating that she would be glad to do as suggested 'immediately upon Mr. Schlemm's settling with me for the Insurance Policy which I hold in the amount of $20,000' and 'if he will forward me a check for half of this amount I shall execute the power and send it to Mr. Johnson together with the policy'. On August 6, 1953, after a conference with her son Mr. Spearing and her nephew Mr. Kenneth W. Higgins, the plaintiff delivered to her son the power of attorney which had been signed by her and had been notarized in New York; Mr. Hggins, who was a notary public of New Jersey, also affixed his name and notarial seal to the power of attorney and it was then mailed to Nevada. On the following day, August 7, 1953, Mr. Spearing took the $50,000 from the safe deposit box in the Commonwealth Trust Company and delivered it to the plaintiff.

On September 8, 1953 Mr. Schlemm and his attorney Mr. Souter appeared in the Second Judicial District Court of the State of Nevada in and for the County of Washoe to prosecute his divorce complaint which charged the defendant with mental cruelty. An answer was filed by Mr. Johnson as attorney for Mrs. Schlemm, acting pursuant to the power of attorney. The answer alleged, as a separate defense, that Mr. Schlemm's residence was not Bona fide but was 'a simulated residence, acquired solely for the purpose of laying a jurisdictional basis for an action for divorce'. Mr. Schlemm testified on direct examination that he had resided in Nevada since July 25, 1953 and that he had come there with the intention of making Nevada his 'permanent home for an indefinite period.' On cross-examination by Mr. Johnson, Mr. Schlemm stated that it was his intention to make Nevada his home for an indefinite period and that he had no present intention of becoming a citizen of any state other than Nevada. In its findings of fact and conclusions of law, the court determined that Mr. Schlemm was a Bona fide resident of Nevada, that the court had jurisdiction of the parties and the subject matter of the proceeding, that Mr. Schlemm had established the allegations of his complaint, and that he was entitled to a decree of divorce. The formal decree of the Nevada court was entered on September 8, 1953 and, after referring to the findings of fact and conclusions of law, adjudged that Mr. Schlemm 'be, and he hereby is, granted a decree of divorce,' final and absolute in form and that 'the bonds of matrimony now and heretofore existing' between Mr. and Mrs. Schlemm 'are fully, completely and forever dissolved.' Shortly after the entry of the decree Mr. Schlemm returned to New Jersey.

On August 7, 1957 the plaintiff Mrs. Schlemm executed deeds which conveyed to the defendant Mr. Schlemm her interest in the property located at Columbia Terrace, Weehawken and in property which is located in Union City and had been conveyed to Mr. and Mrs. Schlemm in 1936. For the execution of these deeds Mr. Schlemm paid $25,000 to Mrs. Schlemm and $2,500 to her counsel. Both of the deeds described Mrs. Schlemm as unmarried although in an agreement dated August 7, 1957, which accompanied the execution of the deeds, Mrs. Schlemm purported to reserve 'any and all rights or claims she may have to challenge and attack the legality and validity' of the divorce proceedings in Nevada. On February 20, 1958 the plaintiff filed a complaint in the Chancery Division which set forth the agreement or understanding between the parties which was placed on the record on open court on July 22, 1953, alleged that the defendant had failed to comply with that portion of the agreement or understanding which related to her support and demanded a judgment declaring the Nevada divorce to be of no force and effect and directing the defendant to provide suitable support and maintenance and to pay all sums due under the agreement of July 22, 1953. The defendant filed an answer which asserted that the Nevada divorce was entitled to full faith and credit in the courts of New Jersey, denied that he was under any obligation to support or maintain the plaintiff and advanced the additional defenses of unclean hands and laches.

After taking evidence and hearing argument the Chancery Division made its determinations and entered its judgment dated January 16, 1959 from which the parties have cross-appealed. It found that, since Mrs. Schlemm had voluntarily submitted herself to the jurisdiction of the Nevada court and had appeared in the Nevada proceeding through her counsel, Mr. Johnson, who had been authorized to appear for her by her power of attorney, the Nevada divorce decree was entitled to full faith and credit in our courts under the explicit holdings of the United States Supreme Court in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, 1 A.L.R.2d 1355 (1948) and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376 (1948). See Nappe v. Nappe, 20 N.J. 337, 343, 120 A.2d 31 (1956); Isserman v. Isserman, 11 N.J. 106, 113, 93 A.2d 571 (1952). In addition, it concluded that the plaintiff did not come into equity with clean hands and was guilty of Laches, citing Sleeper v. Sleeper, 129 N.J.Eq. 94, 18 A.2d 1 (E. & A.1941). See Woodhouse v. Woodhouse, 11 N.J. 225, 229, 94 A.2d 301 (1953); Judkins v. Judkins, 22 N.J.Super. 516, 537, 92 A.2d 120 (Ch.Div.1952); cf. Untermann v. Untermann, 19 N.J. 507, 519, 117 A.2d 599 (1955).

The Chancery Division also...