Shapiro v. Shapiro

• Decision Date: 22 May 1935
• Parties: SHAPIRO v. SHAPIRO.
• Court: New Jersey Court of Chancery

180 A. 434

SHAPIRO

v. SHAPIRO.

Court of Chancery of New Jersey.

May 22, 1935.

Petition for divorce by Beatrice S. Shapiro against Isidore Shapiro. On defendant's motion to strike petition and vacate service of process.

Motion denied.

Henry S. Waldman, of Elizabeth, for petitioner.

Samuel P. Bernhaut and Perry Belfatto, both of Newark, for defendant.

FRANCIS CHILD, Advisory Master.

This is a motion by the defendant to strike the petition for divorce and set aside the citation issued thereon, on the ground that the parties are not husband and wife because of the fact that the defendant husband procured a decree of divorce from the petitioner in the state of Nevada on October 27, 1930.

The parties were married in the state of New York on September 8, 1929, and lived together in that state until February 27, 1930, when they separated. On July 15, 1930, the defendant left the state of New York for the state of Nevada, where he procured his decree for divorce.

It does not appear that there was any written or other appearance entered by the present petitioner in the suit instituted against her in the state of Nevada, neither was there any service of process upon her within the state of Nevada.

It is charged, and not denied, that after obtaining a decree for divorce in Nevada the defendant came almost immediately to the state of New Jersey, where he has since resided.

The petitioner sets out the statement in her petition for divorce that the defendant had procured his decree of divorce in the state of Nevada, and that the decree of divorce obtained by him in that state was obtained by fraud perpetrated upon the courts of the state of Nevada. This allegation is proper under the practice set out in Feickert v. Feickert, 98 N. J. Eq. 444, 131 A. 576.

The defendant in support of his motion to strike the petition contends that this court has no jurisdiction to review or set aside the decree of divorce obtained by the defendant in the state of Nevada, because the fraud, if there was any, was not committed upon the courts of this state; neither party being a resident of this state at the time of the entry of the Nevada decree.

The motion to strike has been substituted for a demurrer, and upon such a motion all of the well-pleaded facts of the petition are assumed to be true for the purposes of motion. It is the court's duty to determine whether upon the facts stated in the petition, the petitioner shows a legal cause of action, and if such legal cause of action is shown, and the court has jurisdiction over the subject-matter, and over the parties, the motion must be denied.

Following the rule above referred to, namely, that all of the facts set out in the petition against which this motion is addressed are true, the defendant, for the purposes of this motion, admits that he went to Nevada to procure a divorce, and that in procuring the same he perpetrated fraud upon the courts of that state.

The position of the defendant is that even admitting the fact that he has committed a fraud, the courts of this state are without jurisdiction because of the fact that when the alleged fraud was committed neither party was a resident of this state. He relies upon the case of Floyd v. Floyd, 95 N. J. Eq. 661, 124 A. 525, in which case the husband filed a bill of complaint, seeking to set aside a decree of divorce obtained by his wife in the courts of Nevada, when neither the husband nor the wife was a resident of the state of New-Jersey at the time the Nevada decree was entered. In the Floyd Case, supra, the Court of Errors and Appeals directed that the bill of complaint filed by the husband be dismissed, one of the reasons being that the courts of this state will not exercise indirectly or in any other way appellate jurisdiction over the decisions or judgments of a sister state.

The Floyd Case, however, in my opinion does not sustain the position taken by the defendant. In 95 N. J. Eq. 661, at page 663, 124 A. 525, 526, Justice Kalisch said: "For, it is quite plain, what the complainant seeks by his bill is a review of the validity of a judgment of a court of general jurisdiction of the state of Nevada by our Court of Chancery, in a direct proceeding instituted for that special purpose. But even if it be conceded that such a course of procedure was permissible, nevertheless, it is quite apparent that it is only available to one who has a legal status, which the complainant obviously did not have, since the domicile of both husband and wife was in the state of Pennsylvania, and there was no res in this state which could be properly dealt with by the Court of Chancery."

The present case is similar to the case of Fried v. Fried, 99 N. J. Eq. 106, 132 A. 674, in which case an Illinois decree of divorce was attacked not directly, but because it was sought to be made the foundation of a defense. In this case Vice...