Shore v. Shore, A--57

• Decision Date: 15 December 1952
• Docket Number: No. A--57,A--57
• Parties: SHORE v. SHORE.
• Court: New Jersey Supreme Court

Page 23

11 N.J. 23

93 A.2d 174

SHORE v. SHORE.

No. A--57.

Supreme Court of New Jersey.

Argued Nov. 24, 1952.

Decided Dec. 15, 1952

Paul C. Kemeny, Perth Amboy, for appellant.

Leslie H. Cohen, Newark, for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

This marital litigation is founded on the activities of wives Nos. 4 and 5, so referred to in the briefs. Lamentably, the record is silent as to the fact of the earlier numbered spouses, which might under the circumstances have been of interest.

Wife No. 4, Elsie, married the defendant in London, England, in September 1943. In March 1949 the defendant obtained a decree of divorce against her in Arkansas.

About two weeks after the Arkansas divorce, the defendant married the plaintiff in the instant cause, Helen, wife No. 5. Subsequently she filed a divorce complaint against him in our Superior Court based upon extreme cruelty.

Shore filed an answer denying the cruelty and later amended to claim condonation. Still later he filed a further amendment alleging as a second separate defense that the Arkansas divorce obtained by him from wife No. 4, Elsie, was void because he was not a bona fide resident in that jurisdiction at the time of suit. In another separate defense he averred the plaintiff Helen had influenced and induced him to obtain the divorce.

When the matter came on for hearing, Shore proceeded with the testimony attempting to support his separate defenses, introduced the Arkansas decree, but before the hearings were finally concluded, asked leave to withdraw his answer, which was granted. Thereafter the court, apparently being convinced by the plaintiff's proof, entered judgment in her favor on June 5, 1951.

While Shore in our jurisdiction was alternately pressing his respective defenses and abandoning them, permitting the plaintiff to proceed without further opposition, there was instituted by wife No. 4, Elsie, a suit for divorce against him in the Supreme Court of the State of New York alleging adultery, in which she sought to set aside the Arkansas divorce as a fraud on the New York courts and to obtain a judgment for divorce against the defendant because of improper relations with the plaintiff in this suit, Helen, wife No. 5.

The defendant filed an answer setting up the Arkansas decree and supporting its validity but then, following closely the pattern adopted in the New Jersey litigation, withdrew his answer and permitted the wife to proceed Ex parte, resulting in the judgment being entered against him holding the Arkansas decree void as a fraud on the New York court and granting the wife a divorce based upon his adultery with the New Jersey plaintiff, Helen.

The defendant at the same time was endeavoring in New York to sustain the validity of the Arkansas decree while in New Jersey he was inconsistently disavowing it.

After the entry of judgment in New York, the defendant filed a petition in our Superior Court asking that the judgment Nisi be vacated and not made absolute and requesting a new hearing on the ground that Helen, the plaintiff in the New Jersey suit, had suppressed evidence as to her knowledge of and participation in Elsie's divorce action in New York. In support of his petition the defendant also alleged Helen knew of the bigamous nature of her relations with the defendant, as she was cognizant of all the facts and inspired the Arkansas suit and therefore came into court with unclean hands.

The Appellate Division, 21 N.J.Super. 179, 91 A.2d 88 (App.Div.1952), affirmed the judgment of the trial court denying the relief sought, 17 N.J.Super. 320, 86 A.2d 23 (Ch.Div.1951), and the defendant appeals here, asserting the constitutional ground that the judgment of the New York court which held the Arkansas decree void is entitled to full faith and credit under the cases of Scherrer v. Scherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429 (1947), and Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1950).

The pertinent rule is succinctly set forth in Kirschbaum v. Kirschbaum, 92 N.J.Eq. 7, 111 A. 697, 698 (Ch.1921):

'An application for a rehearing in chancery is governed by principles applicable to motions for new trials after verdict at law. Feinberg v. Feinberg, 70 N.J.Eq. 420, 62 A. 562, and Richardson v. Hatch, 68 N.J.Eq. 788, 60 A. 52; 64 A. 1134. And at law they are always addressed to the discretion of the court, and are not reviewable on error. Furman v. Applegate, 23 N.J.L. 28, 33; Delaware, L. & W.R.R. Co. v. Nevelle, 51 N.J.L. (332) 333, 17 A. 836, 19 A. 538; State Mutual Bldg. & Loan Ass'n v. Williams, 78 N.J.L. 720, 723, 75 A. 927; DeMateo v. Perano, 80 N.J.L. 437, 438, 78...