Shore v. Shore

• Decision Date: 17 October 1951
• Docket Number: No. M--5731,M--5731
• Citation: 17 N.J.Super. 320,86 A.2d 23
• Parties: SHORE v. SHORE.
• Court: New Jersey Superior Court

Page 320

17 N.J.Super. 320

86 A.2d 23

SHORE v. SHORE.

No. M--5731.

Superior Court of New Jersey Chancery Division.

Oct. 17, 1951.

Leslie H. Cohen, Newark, attorney for the plaintiff.

Paul C. Kemeny, Perth Amboy, and Benjamin Ratner, Newark, attorneys for the defendant.

TOMASULO, A.M.

Defendant appeals from (a) an order denying his application for a rehearing, (b) to vacate a judgment Nisi entered in favor of the plaintiff.

The defendant, who was previously married to one, Elsie Shore, had obtained a divorce decree in Arkansas dissolving said marriage, after which he married the plaintiff in the instant proceeding. Thereafter, Elsie Shore instituted an action in New York, having a two-fold purpose, the first of which was to set aside the Arkansas divorce as constituting a fraud on the New York courts and secondly, to obtain a judgment for divorce against the defendant for his adultery with the plaintiff, Helen. Both the New York action by Elsie Shore and the present proceeding were pending simultaneously. The defendant appeared in the New York action and filed an answer in which he set up his Arkansas decree, the validity of which he maintained in his answer, as a bar to her right to relief. For reasons best known to the defendant, his answer was thereafter withdrawn and the New York action proceeded Ex parte, with the result noted Infra.

The defendant, in his answer to the plaintiff's amended complaint, Inter alia stated here:

'The defendant obtained an Arkansas divorce from his wife, Elsie Shore. The said Arkansas divorce is void and of no effect in this state and is not entitled to full faith and credit because the same was obtained by fraud, as the defendant was not a bona fide resident of Arkansas in which event the Arkansas court never had jurisdiction over the defendant. The defendant was a bona fide resident of the State of New Jersey at the time he secured the Arkansas divorce and has been at all times a bona fide resident of New Jersey. The defendant is the husbandof Elsie Shore and not the husband of Helen Shore, the plaintiff in this action.

'The plaintiff is not entitled to any relief and her suit should be dismissed because she is guilty of unclean hands. Although she knew that the defendant was married to Elsie Shore and that he was a bona fide resident of New Jersey, she induced and influenced him to institute the fraudulent divorce in Arkansas, knowing full well that the defendant was not a bona fide resident of Arkansas and never intended to be, and with full knowledge of the fraud which the defendant perpetrated upon the courts of Arkansas and New Jersey and knowing that the decree of divorce was void, she entered into a marriage with the defendant.'

Thus, a rather anomalous situation arose by which the defendant, in entering his defense to these two actions, affirmed the validity of the Arkansas decree in his New York answer, while at the same time in the concurrently pending New Jersey action, he disavowed its validity and affirmed its invalidity because of his admitted fraud in its procurement.

Both the plaintiff and the defendant, having appeared with counsel at the final hearing on June 5, 1951 in the present cause, the court proceeded to take the plaintiff's proofs. Both the defendant and his counsel participated in the hearing and cross-examined the plaintiff and her witnesses and offered testimony on defendant's behalf. Again, as in the New York litigation, the defendant, before the conclusion of the hearing resulting in the judgment Nisi herein, withdrew his answer and thereupon the matter proceeded Ex parte and to its conclusion by the entry of the judgment Nisi. Subsequent to the entry of the New Jersey judgment the New York action was wound up by the entry of a judgment which (a) held the Arkansas decree void as being a fraud upon the New York court, and (b) divorced Elsie Shore, the plaintiff in the New York action, from the defendant for his adultery with the New Jersey plaintiff, Helen Shore.

Upon the conclusion of the New York proceedings, the defendant petitioned this court to vacate its previously entered judgment Nisi and to restrain its becoming final, alleging as his grounds therefor, that the New York judgment invalidating the Arkansas decree had the legal effect of having conferred upon him the status of having been married to Elsie at the time of his marriage to Helen and that consequently, the latter marriage was void, leaving no valid marriage in existence capable of being dissolved by a judgment of divorce in the case Sub judice.

Our statute authorizes the vacating of a decree Nisi in the following instances:

R.S. 2:50--30, N.J.S.A.: 'A judgment nisi shall become absolute after the expiration of three months from the entry thereof, unless appealed from or proceedings for review are pending, or the court before the expiration of such period for sufficient cause, upon its own motion, or upon the application of any party, whether interested or not, otherwise orders; and at the expiration of three months, the final and absolute judgment shall be entered, unless prior to that time cause be shown to the contrary.'

Rule 3:87--5: 'In every action for absolute divorce or for nullity of marriage the final judgment shall be entered by the clerk, as of course, immediately upon the expiration of three months from the entry of the judgment nisi, unless that judgment be appealed from or proceedings for review are pending, or the court, before the expiration of said period, for sufficient cause upon its own motion, or upon the application of any party, whether interested or not, otherwise orders.'

It is not contended by the defendant that he is entitled to the benefit of the provisions of the cited law. At any rate, the defendant does not invoke the statute as a basis for the relief sought in his petition to vacate the judgment Nisi, to which under any circumstances we must look in order to determine the defendant's right to the relief sought. The defendant's petition for a rehearing and to vacate the judgment Nisi states:

'Your petitioner, William Shore, for cause why the said decree should not be made absolute, and seeking a rehearing, shows

'(a) At the original hearing, evidence as to the knowledge and participation in the divorce action brought by Elsie Shore against your petitioner in the Supreme Court of New York, on the part of Helen Shore the plaintiff in the New Jersey action, was suppressed. Since the decree nisi, proof has become available that the mother of Helen Shore, a witness in the New Jersey action, testified for Elsie Shore in the New York action. This testimony together with testimony before the court as to the procurement of the Arkansas decree, is sufficient to justify a decree for annulment, which your petitioner seeks.

'(b) The plaintiff, Helen Shore, knew of the bigamous nature of her marriage to your petitioner, having inspired the Arkansas action, declared void by the New York action wherein the said Helen Shore was a participant and started this action (M--5731--49) Superior Court of New Jersey, with unclean hands.'

The application of the defendant, therefore, must assume the status of an application for a...