Sturm v. Sturm

• Decision Date: 07 November 1932
• Citation: 163 A. 5
• Parties: STURM v. STURM.
• Court: New Jersey Court of Chancery

163 A. 5

STURM

v. STURM.

Court of Chancery of New Jersey.

Nov. 7, 1932.

Syllabus by the Court.

1. In a suit for separate maintenance under section 26 of the Divorce Act (2 Comp. St. 1910, p. 2038, § 26), while the fact of marriage is jurisdictional, yet if a marriage ceremony is shown to have been performed the burden of proving the invalidity of such marriage rests strongly upon the defendant.

2. The validity of a marriage is to be tested by the lex loci contractus.

3. If there be an infirmity in a marriage ceremony, as tested by the lex loci contractus, the same legal consequences will be decreed by our courts to result from such infirmity as would be decreed to result therefrom by the courts of the jurisdiction in which the ceremony was performed.

4. Where, by the law of a foreign country, an infirmity is shown to have existed in a marriage ceremony performed in that country, but the proofs do not clearly show the legal consequences of such infirmity according to the lex loci contractus, this court will decree such legal consequence to have resulted as our own notions of equity and justice require.

5. A Jewish ceremony of marriage performed in Galicia in the year 1906, when Galicia was an Austrian province, in which the bans were not published or the names of the parties registered as required by the statutory law of that country, was defective; yet the Supreme Court at Vienna had jurisdiction to determine whether such marriages were void or binding in any given case, and in such cases decided that certain of such marriages were binding and others not binding (although the infirmities were apparently the same in both classes of cases), without opinion, so that it cannot be determined what principles of equity or law, if any, were consistently applied to such cases by that court. Held, that since such marriages sometimes were declared valid by the Vienna court, they are not void; and since it does not appear on what principles the Vienna court assumed to treat of them, this court in a suit in which the validity of such a marriage is in issue will deal with it as with a marriage defectively solemnized in New Jersey.

6. A ceremony of marriage performed in New Jersey, defective because of the omission of formalities prescribed by statute, is valid and binding on the parties to it if they are competent and if the agreement be to effect a present marriage status.

7. An agreement of marriage per verba de futuro is Confirmed and validated by subsequent cohabitation and birth of issue, or by proof of habit and repute.

8. A defective ceremonial marriage between competent parties, void by the lex loci contractus, is validated upon the change of matrimonial domicile to New Jersey, if the parties continue to maintain consenting minds with respect to the marriage status.

9. The right of cross-examination is limited against unreasonable repetition and prolixity. Where a witness has been cross-examined to the extent that further cross-examination would constitute undue repetition, the court may refuse to allow further cross-examination, and may consider his testimony as though his cross-examination had been completed.

Suit by Rose Sturm against Mandl Sturm for separate maintenance. Decree in favor of the complainant.

This matter was referred to Dougal Herr, Advisory Master who filed the following conclusions.

The parties to this suit were born in Galicia, then and thereafter, until the Treaty of Versailles was consummated in the year 1918, a province of the monarchy of Austria-Hungary. In February of the year of 3906 they went through a ceremony of marriage to each other, which was performed by a rabbi of the Jewish faith in that province. At that time and until the year 1918 there was in force and effect in Galicia a Code of Civil Daws which prescribed certain formalities to be observed in the performance of such marriage ceremonies including an announcement of the proposed marriage in the synagogue or place of prayer, the certification to the rabbi designated to perform the marriage that such announcement was duly made, the appearance of the parties before the rabbi with proof of their capacity to become married, a solemn declaration of the marriage by the rabbi, a written return by the rabbi to the recorder, and an entry of the return in the official records.

The proofs offered by the defendant indicate that the bans were not published in this case, nor the registration made, as required by law. Because of these omissions he contends that his marriage to the complainant is absolutely void under a section of the Civil Code aforementioned, that the marriage being invalid where performed is invalid everywhere, and that complainant's bill must be dismissed, because she has failed to prove a valid marriage to the defendant This section of the Code (section 70) provides in effect that the omission of any of the prescribed ceremonial formalities will render the marriage infirm, but neither this section nor any other section of the Code defines the extent or the legal effect of such infirmity.

That the parties intended that their marriage should be valid and binding is beyond doubt. There was no attempt at secrecy. A written antenuptial agreement was executed by the parents of the respective parties. The rabbi who performed the ceremony was the rabbi regularly attached to the synagogue at which complainant and her parents were regular attendants. The ceremony took place at an inn about fifteen blocks distant from complainant's home. On the day of the marriage both parties attended with their parents, relations, and friends. There were upwards of one hundred guests. There were music, dancing, and refreshments, followed by the ceremony of marriage with all of the requirements prescribed by the Jewish ritual.

After the ceremony the parties lived together in Galicia as husband and wife. Complainant's father paid to defendant a sum of money as a dowry for his daughter. On February 3, 1907, a daughter was born to them. All of the requisites of a valid marriage are shown, save only the omission of Statutory directions for its publication and registration: there was a contract per verba de prÆsenti, followed by cohabitation and the birth of issue, and there is ample proof of habit and repute.

In October, 1907, the defendant emigrated to the United States, leaving complainant and their daughter in Galicia to await his summons to join him in this country. When he arrived in the United States he was befriended and given a start by an uncle of complainant, who lived in New York City, and shortly thereafter became domiciled in New Jersey. He wrote complainant affectionate letters and sent her money. He became a naturalized American citizen and in his application made affidavit that complainant was his wife. He finally sent money to complainant in order that she and their daughter might join him here; but when they arrived at Ellis Island in June, 1913, the defendant had a sudden change of heart. He failed to meet them and endeavored to procure their deportation, and from that time to the present has consistently repudiated complainant, ignored her, and sought to rid himself of her. He never cohabited with her after leaving her in Galicia in October, 1907.

All of the statutory conditions are conceded to exist which entitle complainant to relief in this suit, except the fact of marriage.

While the fact of marriage is jurisdictional, nevertheless, if a marriage ceremony be proved to have been performed even though it be defective because of the lack of some statutory requirement, yet it will be presumed to be valid and the burden will be on the defendant to overcome this presumption by proof that the marriage is void.

It is a general principle of international and interstate law, subject to but few exceptions, that the validity of a marriage, so far as it depends upon the preliminaries and the manner or mode of its performance or solemnization, is to be determined by reference to the law of the place where it was performed or solemnized.

The general rule of law is that a marriage valid where it is performed is valid everywhere; and the converse of this proposition, that a marriage void where it is performed is void everywhere, is equally well settled. Harral v. Harral, 39 N. J. Eq. 279, 287, 51 Am. Rep. 17; Clark v. Clark, 52 N. J. Eq. 650, 30 A. 81; Schaffer v. Krestovnikow, 88 N. J. Eq. 192, 102 A. 246; Bolmer v. Edsall, 90 N. J. Eq. 299, 106 A. 646; Capossa v. Colonna, 95 N. J. Eq. 35,122 a. 378, affirmed 96 N. J. Eq. 385, 124 A. 760 J Huard v. McTeigh, 113 Or. 279, 232 P. 658, 39 A. L. R. 528; Great Northern R. Co. v. Johnson, 254 F. 683, 166 C. C. A. 181; Young v. Young, 213 Ill. App. 402; Acklin v. Employes' Benefit Ass'n, 222 Ill. App. 369; In re Wells, 123 App. Div. 79, 108 N. Y. S. 164, affirmed 194 N. Y. 548, 87 N. E. 1129.

The rule that a marriage invalid where performed is invalid everywhere is subject to certain exceptions, such as marriages celebrated in foreign countries by citizens entitled to the benefit of the laws of their own country. Phillips v. Gregg, 10 Watts (Pa.) 158, 36 Am. Dec. 158; Canale v. People, 177 Ill. 219, 52 N. E. 310; Travers v. Reinhardt, 205 U. S. 423, 27 S. Ct. 563, 51 L. Ed. 865.

But so far as the validity of a marriage depends on the preliminaries or the manner or form of solemnization, the parties being domiciled in the jurisdiction where the marriage was performed, there seem to be no exceptions to the rule that the lex loci contractus governs. Smith v. Smith, 52 N. J. Law, 207, 213, 19 A. 255; Note to Hills v. State (61 Neb. 589, 85 N. W. 836) reported in 57 L. R. A. 155; Ollschlager v. Widmer, 55 Or. 145, 105 P. 717; Reifschneider v. Reifschneider, 241 Ill. 92, 89 N. E. 255; Sottomayer v. De Barros, L. K. 5 Prob. Div. 94, 5 Eng. Rul. Cas. 814; Simonin v. Millac, 2 Swab. & T. 67.

Yet a ceremony of marriage, such as is proved in this case, whether in due form or not,...