Zieper v. Zieper

• Decision Date: 01 March 1954
• Docket Number: No. A--86,A--86
• Citation: 14 N.J. 551,103 A.2d 366
• Parties: ZIEPER v. ZIEPER.
• Court: New Jersey Supreme Court

Page 551

14 N.J. 551

103 A.2d 366

ZIEPER v. ZIEPER.

No. A--86.

Supreme Court of New Jersey.

Argued Jan. 25, 1954.

Decided March 1, 1954.

J. Mortimer Rubenstein, Paterson, for appellant.

No appearance for respondent.

The opinion of the court was delivered by

HEHER, J.

We have here the question of the validity of a final judgment granted June 6, 1949, by the Superior Court of the State of California, in and for the County of Los Angeles, following an interlocutory judgment entered May 28, 1948, dissolving the marriage between these parties litigant, Emanuel Zieper and Rebecca Zieper, in a suit brought by the wife on October 30, 1947.

The complaint in the California action accused Emanuel of 'cruel and inhuman' treatment, the infliction of 'great and grievous mental and physical pain, suffering and anguish,' and desertion; and the judgment was entered by default, for want of an appearance and answer. The complaint alleged plaintiff's residence in California for more than one year prior to the commencement of the action, and in the County of Los Angeles for more than three months preceding the commencement of the action.

Service of process upon the absent husband in the California action was made by publication and mailing; and thereafter, on November 25, 1947, the husband instituted suit in the old Court of Chancery of New Jersey to enjoin the prosecution of the California action for divorce. An Ad interim restraint was granted; and the wife was directed to show cause on January 9, 1948, why the restraint should not continue Pendente lite. There was substituted service of process upon the wife, by registered mail and personal service in California, but there was no appearance.

The gravamen of the complaint was falsity in the wife's allegation of residence in California, and thus a wilful fraud upon the California court which inhered in the jurisdiction and would vitiate a judgment for divorce thereafter entered. And the wife was charged with wilful, continued and obstinate desertion and a separation from the established 'matrimonial domicile' in New Jersey, ineffectual because against the will of her husband, and therefore a feigned residence in California to induce the grant there of a divorce 'for an alleged cause which occurred while the parties were Bona fide residents of and domiciled' in New Jersey, in disregard of R.S. 1937, 2:50--35, now N.J.S. 2A:34--22, N.J.S.A. A decree Pro confesso was entered April 26, 1948, but the wife nevertheless prosecuted her California suit to final judgment. Thereafter, on June 25, 1949, a final decree was entered in the New Jersey suit adjudging that the wife's interlocutory judgment of divorce in the California action 'was procured by fraud and imposition' as to residence practiced by the wife upon the California court, in that the wife 'was and still is domiciled' in New Jersey, and the 'marital status' of the parties 'has always been and now is subject to the jurisdiction' of the New Jersey courts, and so the interlocutory judgment of divorce 'is null, void and of no force or effect' in New Jersey. There was a continuance of the restraint against the prosecution of the California action for divorce, and as well 'any other proceedings against' the husband for divorce 'or involving the matrimonial status' of the parties, either in California 'or elsewhere other than in' New Jersey; and 'any final judgment of divorce' then or thereafter entered in the California suit was decreed 'to be null, void and of no force or effect' in New Jersey.

In the current New Jersey action, commenced October 27, 1949, Emanuel seeks a divorce for Rebecca's wilful, continued and obstinate desertion since the separation in January 1947. Rebecca answered denying the desertion thus laid to her, countered with an allegation of Emanuel's desertion of her 'while both were residents' of California, and its wilful and obstinate continuance, and, by counterclaim, pleaded in separate counts the California judgment of divorce, its subsistence and validity, and Emanuel's desertion of her on January 20, 1947, and prayed for a dissolution of the marriage, custody of the child, and support and maintenance for herself and the child. Emanuel's answer to the counterclaim challenged the validity of the California divorce on jurisdictional grounds, and pleaded the New Jersey injunction against prosecution of the California action and the subsequent judgment in that proceeding purporting to nullify the California divorce.

Emanuel was awarded judgment Nisi for divorce in this suit, and there was a dismissal of Rebecca's counterclaim save that she was given custody of the child and an allowance for the child's support. Rebecca appealed. The Appellate Division divided. The majority found 'testimony persuasively evidential of the deceit intentionally practiced upon the California court' by Rebecca 'in obtaining her judgment of divorce in that jurisdiction,' presumably in relation to the jurisdictional domicil, and therefore the divorce is not entitled to recognition in New Jersey. Each of the parties was absolved of the charge of obstinate desertion; the judgment Nisi for divorce was reversed, and there was an affirmance of the dismissal of Rebecca's counterclaim as to her 'individually,' and the allowances to her for the support of the child and the services of counsel were sustained. But Judge Bigelow was of the opinion the California divorce was invulnerable. 25 N.J.Super. 500, 96 A.2d 769 (App.Div.1953). Thus the case is here on Rebecca's appeal of right under the 1947 Constitution. Article VI, Section V, paragraph 1(b). Emanuel did not appear on either appeal.

The basis of jurisdiction to dissolve the matrimonial status is domicil, or at least residence animus manendi; and the dissolution of marriage is governed by the Lex domicilii. The Full Faith and Credit Clause of the Federal Constitution, Article IV, Section 1, implemented by 28 U.S.C.A., § 1738, formerly § 687, enjoins extraterritorial acceptance of a decree of divorce obtained in keeping with the requirements of procedural due process by a spouse who had acquired a Bona fide domicil in the state in which the divorce was granted, even though the spouse against whom the decree was entered had remained in the state of the original matrimonial domicil and had neither appeared nor been served with process in the state in which the divorce proceeding was instituted and recognition of such a divorce would offend the policy of the former state. Hollander v. Hollander, 137 N.J.Eq. 70, 42 A.2d 648 (E. & A.1945); Tonti v. Chadwick, 1 N.J. 531, 64 A.2d 436 (1949); Peff v. Peff, 2 N.J. 513, 67 A.2d 161 (1949); Robison v. Robison, 9 N.J. 288, 88 A.2d 202 (1952); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804 (1901).

Such is the exposition of the Full Faith and Credit Clause by the supreme federal interpretative authority. The constitutional protection does not extend to judgments of the courts of sister states not invested with jurisdiction either of the subject matter or of the person of the defendant. The Full Faith and Credit Clause comes into operation only when 'the jurisdiction of the court in another state is not impeached, either as to subject matter or the person'; a decree of divorce 'is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact'; and, while the issue of jurisdiction, once settled 'after appropriate opportunity to present their contentions has been afforded to all who had an interest in its adjudication,' cannot after a contest be relitigated between the parties, 'those not parties to a litigation ought not to be foreclosed by the interested actions of others,' and the state 'of domiciliary origin should not be bound by an unfounded, even if not collusive, recital in the record of a court of another State.' Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Thompson v. Whitman, 18 wall. 457, 21 L.Ed. 897 (1874); Mills v. Duryee, 7 Cranch. 481, 3 L.Ed. 411 (1813). For the requirements of full faith and credit where the defendant participated in the divorce proceedings and was afforded full opportunity to contest the jurisdictional issues, see Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1089, 1097, 92 L.Ed. 1429 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948). And compare the later case of Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949).

The historical view that a suit for divorce is altogether a proceeding In rem is no longer entertained. But it is not a mere In personam action. It is not an 'ordinary adversary proceeding,' to use the words of Mr. Justice Frankfurter in the second Williams case, cited supra. Domicil of the plaintiff, of no significance to jurisdiction in a personal action, is yet requisite to jurisdiction which will entitled he divorce decree to extraterritorial effect, at least when the defendant has neither been personally served with process nor entered an appearance. Although not the original matrimonial domicil, the domicil of the plaintiff gives rise to a relationship to the state which is adequate for numerous exercises of state power, and judicial dissolution of the marriage is not an exception. Said Mr. Justice Douglas in the first Williams case: 'Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal;' and so 'it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institutions of...