Shepherd v. Ward

• Decision Date: 10 January 1950
• Docket Number: 400,Nos. A--399,s. A--399
• Citation: 70 A.2d 502,6 N.J.Super. 130
• Parties: SHEPHERD v. WARD. WARD v. WARD.
• Court: New Jersey Superior Court — Appellate Division

Page 130

6 N.J.Super. 130

70 A.2d 502

SHEPHERD v. WARD.

WARD v. WARD.

Nos. A--399, 400.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 19, 1949.

Decided Jan. 10, 1950.

George W. C. McCarter, Newark, argued the cause for appellant (McCarter, English & Studer, Newark, attorneys).

Dougal Herr, Elizabeth, argued the cause for respondent.

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

COLIE, J.A.D.

The first appeal is from a judgment dismissing Marilyn Shepherd's action for alimony. The second is an appeal from a judgment of divorce awarded Albert J. Ward. The legal questions presented are best examined against the factual and chronological background.

Marilyn Shepherd and Albert J. Ward were married on September 6, 1941 and thereafter resided in Morristown where he was an active practicing physician. There are no children. For reasons presently immaterial, they separated in August 1946. Mrs. Ward thereafter lived with her parents in Maplewood, N.J. until October 22, 1947 when she went to Florida. Dr. Ward continued to live in his home in Morristown. On April 14, 1948, Mrs. Ward commenced an action for divorce in Florida on the ground of extreme cruelty. Hereinafter her suit for divorce will be described as the Florida action. Dr. Ward was not served personally in the Florida action but by publication and substituted service. He did not then or subsequently appear or take any step therein. Instead he countered in May, 1948 with a suit in the former Court of Chancery whereby he sought and obtained against his wife a preliminary injunction from further prosecuting the Florida action.

The Florida action resulted in a decree on June 14, 1948 divorcing the parties. Four days after the date of entry of the Florida decree, Mrs. Ward, now Marilyn Shepherd, commenced a suit for alimony against Dr. Ward in the former Court of Chancery. Dr. Ward answered the complaint in the alimony suit, setting up (1) that Mrs. Ward was incapable of acquiring a Florida domicile without his consent or without proof that he had committed a matrimonial offense under New Jersey law and (2) that the Florida divorce was obtained in disregard of the preliminary injunction.

The pleadings and other papers in the injunction suit are not before us. In lieu thereof the appendix contains a stipulation with reference thereto. That stipulation reads: 'Notice of this suit was given by registered mail to her and to her Florida attorney as provided by orders made in that cause, and like notice was given both of all subsequent proceedings therein. She was brought in by publication and substituted service of process. A stay and (subsequently) an injunction were issued in the injunction suit and served on her in Florida.' The papers in the injunction suit started in May 1948 were received by Mrs. Ward. The stipulation then reads: 'On September 14, 1948, an amendment by way of supplement to the bill in the injunction suit was filed, setting up the fact that Mrs. Ward had, contrary to the command of the injunction, proceeded to take a decree for divorce in the Florida court, and praying that said decree be adjudged to be of no force and effect in this state.' With reference to service of the supplemental bill, the stipulation reads: 'Mrs. Ward and her Florida attorney were again given notice by registered mail of the amendment, and accorded time within which to answer. All the papers required to be mailed to her and her attorney in Florida were duly mailed in accordance with the orders made in that cause and the practice of the former Court of Chancery.' Mrs. Ward testified that it was not until January 1949 that she first learned that the validity of the Florida divorce was being attacked in the injunction proceeding; that the first knowledge she had to that effect came from her parents who went to Florida to visit her and from a copy of a newspaper article forwarded to her by her counsel. There is, however, in the record in the injunction suit an affidavit that copies of the supplemental bill and of the order permitting the filing of same were mailed to Howard C. Fisher, Esquire, a Florida attorney, and to Marilyn Shepherd. The affidavit recites that they were mailed on September 15, 1948 and the record contains a return receipt signed by Howard C. Fisher and another return receipt signed by Mrs. Marilyn Shepherd.

No answer was filed to the first or to the supplemental bill in the injunction suit, and it culminated on December 15, 1948 in an Ex parte judgment holding the Florida decree to be void because of the absence of a Bona fide domicile in Florida by Mrs. Ward. After the entry of the judgment declaring the Florida decree void, Dr. Ward filed an amended answer in the alimony action against him, setting up as a bar the judgment of December 15, 1948 declaring the Florida decree void. On September 14, 1948, the same date when the supplemental bill was filed in the injunction suit, Dr. Ward commenced an action for divorce grounded upon his wife's desertion. She filed an answer therein setting up (1) that there was no personal service upon her in Dr. Ward's divorce action and therefore the court had no jurisdiction over her, and (2) that under Article IV, Section I of the Federal Constitution her Florida decree was entitled to full faith and credit in New Jersey and that as a consequence thereof Dr. Ward and she were not husband and wife, Ergo, no marriage existed for the New Jersey court to dissolve.

In the original injunction suit, Mrs. Ward was brought in by publication and substituted service of process and under Kempson v. Kempson, 61 N.J.Eq. 303, 48 A. 244 (Ch. 1901) modified 63 N.J.Eq. 783, 52 A. 360, 625, 58 L.R.A. 484, 92 Am.St.Rep. 682 (E. & A. 1902) the restraint against the further prosecution of the Florida action was valid. From the stipulation it is clear that service in the original injunction suit was made in accordance with the New Jersey statutes and rules of the Court of Chancery with respect to absent defendants. With the filing of the supplemental bill, that is not the case. The stipulation as to service of the supplemental bill is significantly silent as to publication, and the statute applicable to service upon absent defendants, R.S. 2:29--29, N.J.S.A., requires service on an absent defendant 'either personally, by the delivery of a copy thereof to him, or by publication thereof, four times in one or more newspapers printed in this state and designated in the order, during four consecutive calendar weeks, at least once in each week.' It is not suggested that the supplemental bill was served personally upon the defendant and we are not at liberty to assume that there was publication as required by the statute. In the absence of personal service or publication, we are forced to the conclusion that any proceedings based upon the supplemental bill in the injunction suit are void because of the absence of procedural due process. The proceeding from the time of the filing of the supplemental bill was completely changed in that it thereafter sought an adjudication by the court in New Jersey that the Florida divorce decree was invalid. Mrs. Ward, not being brought into court by due process, was under no duty to appear and contest the suit based on the supplemental bill which culminated on December 15, 1948 in a judgment that the Florida divorce was void.

The judgments under appeal are based upon two holdings, (1) that the question of Mrs. Ward's domicile is Res adjudicata by reason of the finding of the court to that effect in the injunction suit, and (2) upon a finding of fact in Dr. Ward's divorce action that the Florida residence of Mrs. Ward was not Bona fide and that consequently the Florida Court had no jurisdiction to enter a decree of divorce. We hold that the injunction based on the supplemental bill is void for want of procedural due process. Therefore, the decision in the injunction suit that the Florida decree was invalid cannot be sustained on that ground. There is, however, no question of the right of New Jersey to inquire into the question of whether or not a decree of divorce of a sister state is predicated upon a Bona fide...