Wolff v. Wolff.

• Decision Date: 04 October 1943
• Docket Number: 145/358.
• Parties: WOLFF v. WOLFF.
• Court: New Jersey Court of Chancery

34 A.2d 150

WOLFF

v.WOLFF.

145/358.

Court of Chancery of New Jersey.

Oct. 4, 1943.

COPYRIGHT MATERIAL OMITTED.

Suit by Miriam Wolff against Max Wolff for separate maintenance.

Decree for plaintiff.

1. Where a wife, who is without property or income of her own attends with her husband at the office of his lawyer and there in her husband's presence, without independent advice, executes a separation agreement by which, without consideration, she releases her husband from all financial obligation to her, past, present and future, such agreement will be regarded in equity as having been procured from her through the undue influence or coercion of her husband. It is not enforceable against her and does not bar her suit for separate maintenance.

2. An agreement between husband and wife intended essentially to facilitate the procuring of a divorce in a state in which neither party is domiciled, therefore necessarily contemplating the false simulation of domicile in that state, in contravention of a statute requiring that a decree for divorce must rest upon the domicile in that state of at least one of the parties, is void as against public policy.

3. A separation agreement is abrogated by the subsequent normal marital cohabitation of the parties, and any existing causes of action for divorce are likewise condoned thereby.

4. Husband and wife cannot by contract extinguish the husband's obligation to support and maintain his wife.

5. Extrinsic or collateral fraud practiced by the successful party to a suit, whereby the unsuccessful party was prevented from exhibiting fully his case, so that there was no real contest, renders the decree invalid as lacking a basis of procedural due process, and hence vulnerable to collateral attack.

6. Where a husband procured from his wife a power of attorney in blank, wherein he inserted the name of a lawyer to enter his wife's appearance in a suit which he contemplated instituting in the state of Nevada, and she afterwards repudiated the power before it was acted upon, but the husband notwithstanding such repudiation, brought such suit and by the fraudulent use of the revoked power procured a decree for divorce, without process and without notice to her, the decree is invalid as lacking due process and does not bar the wife's subsequent suit for separate maintenance.

7. A decree for divorce, although rendered by a court of competent jurisdiction and based upon procedural due process and upon evidence that the petitioner therein was domiciled in the state of the forum, against a defendant, domiciled elsewhere (the bona fides of petitioner's domicile in that state not having actually been litigated in that suit), is not entitled to full faith and credit when challenged in a subsequent suit between the same parties upon a different cause of action in another state, if it is proved that such petitioner was not in fact domiciled in the state where the decree was rendered, but that he falsely and fraudulently simulated such domicile. Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518, and Williams et al. v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 287, 87 L.Ed. 279, 143 A.L.R. 1273, distinguished. Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804, and Streitwolf v. Streitwolf, 58 N.J.Eq. 563, 41 A. 876, 43 A. 683, 78 Am.St.Rep. 630, affirmed 181 U.S.179, 21 S.Ct. 553, 45 L.Ed. 807, followed.

8. The evidence in this case convincingly proves that defendant was never domiciled in Nevada and that the Nevada court would not have granted the decree had not defendant misrepresented or suppressed the facts with respect to his domicile. His decree is therefore invalid in this state when pleaded in bar of his wife's suit for separate maintenance. Sprague v. Sprague, 131 N.J.Eq. 104, 23 A.2d 810, followed.

Hyman Halpern, of Passaic, for complainant.

Milton M. Unger, of Newark, for defendant.

HERR, Advisory Master.

This is a suit for separate maintenance. By his answer the defendant admits that the marriage took place as charged, but denies that it is presently subsisting. He also denies complainant's charges of abandonment and refusal and neglect to maintain and provide, and sets up as special defenses that on November 2, 1942, he was granted a decree of absolute divorce against complainant in the state of Nevada, that said decree ‘adopted, ratified and confirmed’ an agreement made by the parties on July 3, 1942, whereby complainant waived and relinquished all financial claims upon him, past, present and future, that by reason thereof complainant is ‘estopped and barred’ from maintaining her present action and that her suit is for those reasons not brought or prosecuted in good faith.

The parties were married on February 23, 1942, and cohabited at the city of Red Bank in this state until their final separation on July 5, 1942, a period of less than five months. There are no children. It is immaterial to inquire into the reasons for the separation or to weigh the faults of the respective parties since neither accuses the other of any marital offense amounting to ground for divorce. Suffice it to say that there was constant quarrelling, culminating on July 1, 1942, in a parol agreement between them that defendant would procure a divorce without opposition and that complainant would release him from all financial obligation to her. The evidence indicates that the defendant was the aggressor in proposing and advocating that arrangement and that complainant assented thereto unwillingly, her subsequent expression of desire that it be carried out having been inspired by a sense of pique and injured pride rather than through any deliberate, free choice.

On July 2, 1942, defendant took complainant to the office of his New York attorney, who was also a friend of long standing of the defendant but with whom complainant was but casually acquainted. To him they both in each other's presence made known their intention. In an effort to bring about a reconciliation he advised them to think the matter over further. On the following day the parties again attended together at the lawyer's office and reiterated their determination to go through with their plan, whereupon the written agreement set up in defense of this suit was drawn and executed, as follows:

‘Agreement made and entered into the day and year written below by and between Max Wolff, residing at Cooper Boulevard, Red Bank, New Jersey (hereinafter referred to as the ‘husband’) and Miriam Siegel Wolff, residing at Woodstock, New York (hereinafter referred to as the ‘wife’), Witnesseth:

‘Whereas, the husband and wife were married in Elkton, Maryland on the 23rd day of February, 1942, and have resided at Cooper Boulevard, Red Bank, New Jersey, since that date, and

‘Whereas, there is no issue of the said marriage, and

‘Whereas, because of the unhappy and irreconcilable differences which have arisen between the husband and wife they have separated prior to the date of this agreement, and since such separation have been and are now living separate and apart, and

‘Whereas, they each believe that it will be best for them to continue to live separate and apart for the rest of their lives, and‘Whereas, the husband and wife desire to enter into this agreement for the purpose of setting forth in writing their intention to continue to live separate and apart and for the purpose of making arrangements therefor upon the terms and conditions hereinafter set forth.

‘Now, therefore, in consideration of the mutual covenants herein contained, and for other good and valuable considerations, the parties hereto mutually agree as follows:

‘1) The husband and wife shall have the right to live separate and apart, each from the other, during the remainder of their lives, and each shall be entirely free from the marital control or authority of the other as if each were single and unmarried, without any restraint or interference whatsoever, either direct or indirect. Neither the husband nor the wife shall, at any time, sue the other or suffer the other to be sued in any action for separation by reason of their living separate and apart as aforesaid. Neither the husband nor the wife shall make any claim upon the other for marital or nuptial rights, and neither shall in any way molest, annoy, hinder, or interfere with the other in his or her life or business in any manner whatsoever.

‘2) The husband and wife each discharges, releases, and waives any and all claims which each may have against the other by reason of any matter, cause, or thing whatsoever from the beginning of the world to the date of this agreement, except such obligations as are set forth herein. The wife hereby specifically releases and discharges the husband from any and all obligations to maintain a home for her, to make any payments to her, to support her, to contribute to her support, or to pay any settlement, counsel fees, or alimony, whether temporary or permanent.

‘3) The wife hereby covenants and agrees that she will not, at any time hereafter, contract any debts, charges, or obligations whatsoever for which the husband or his property or estate shall be liable, and the wife hereby agrees to indemnity the husband and save him harmless against any and all debts, charges, obligations, and liabilities which may be contracted by the wife after the date of this agreement.

‘4) The husband and wife each hereby grants, remises, and releases to the other any and all rights of dower or courtesy or statutory rights in lieu thereof which each has or may hereafter acquire in the real or personal property of the other, whereever situated, by reason of inheritance or descent or by virtue of any statute of distribution, any decedent's estate law, or other statute or custom or by reason of their marital relationship. Each party hereby expressly waives any right of election under the Decedent's Estate Law of the State of New York, or under the laws of any other state against...