Eberle v. SomonekEberle v. Somonek
This is a suit for partition of improved real estate, consisting of a dwelling house on a lot 100 x 100 feet, situate in the Borough of Spotswood, Middlesex County, N.J., аnd arises out of the following circumstances:
Title to the property in question was conveyed to Joseph Somonek and Mary Somonek, his wife, by deed dated May 14, 1945 and recorded in the Middlesex County Clerk‘s Office May 16, 1945 in Book 1277 of Deeds at page 317.
June 1, 1949 a final decreе of divorce was entered in the Circuit Court of the Eleventh Judicial Circuit of the State of Florida, in and for Dade County, in favor of the wife, Mary Somonek, and against her husband, Joseph Somonek. Thereafter on or about June 8, 1949 Mary Somonek contracted a marriage with Gabriel H. Eberle whose wife she now claims to be.
Plaintiff alleges that by reason of the marriage between Joseph and Mary Somonek having been dissolved by divorce, the estate by the entireties formerly existing between them with reference to the Spotswood property was converted into a tenancy in common.
And by way of counterclaim, defendant repeats his allegations with respect to the fraudulent nature of the Florida divorce proceedings and demands judgment that the Florida decree of divorce be declared to be of no force and effect in the State of New Jersey and that the plaintiff be adjudged to still be the lawful wife of the defеndant.
At the trial, there was introduced in evidence exemplified copy of the Florida divorce proceedings, including the complaint, order for service by publication, proof of publication of notice, decree pro confesso for failure of the defendant to appear, and final decree of divorce entered June 1, 1949. The complaint in the divorce suit was verified by plaintiff‘s affidavit made April 5, 1949, and the complaint was filed that day. It alleges, inter alia, that the plaintiff was at that
At the trial, plaintiff offered in evidence exemplified copy of the Florida divorce proceedings, including the final judgment, invited attention to the admissions contаined in the pleadings and pretrial order, and rested.
Defendant took the stand and testified, called five additional witnesses who gave testimony, and offered in evidence depositions taken in Florida of Gabriel H. Eberle, present husband of the plaintiff, and rested.
In rebuttal, plaintiff then offered in evidence depositions taken in Florida of Charles R. Moomaw and Trygbe Salomonsen.
The witnesses produced by the defendant at the trial testified in the main to the relations existing between the defendant and his then wife while they were living together at Spоtswood, the alleged improper relations between the plaintiff and Gabriel Henry Eberle, the fact that Mrs. Somonek left her husband December 7, 1948 after which he did not see her again, and the fact that Gabriel Henry Eberle quit his job at the Hercules Powder Company plant аt Parlin, N.J., on January 21, 1949.
Based on the proofs submitted in this case, I find the following facts:
The plaintiff‘s present husband, Gabriel H. Eberle, resided in Spotswood, N.J., until on or about January 21, 1949 when he quit his job with the Hercules Powder Company at its plant in Parlin, N.J. He arrived in Florida January 27, 1949. Eberle‘s former wife obtained a divorce from him in February or March of 1949. On June 8, 1949, in Florida, Eberle and the former Mary Ann Somonek, plaintiff in this suit, were married. The plaintiff and her husband, Gabriel H. Eberle, have resided in Florida continuously since the date of their marriage and, in fact, neither of them have at any time departed the State of Florida since the date of their marriage up until the date of the trial of this cause.
The home in Spotswood, situate on a lot 100 x 100 feet, is not partible.
Based on the foregoing facts, is the Florida decree of divorce entitled to full faith and credit in the State of New Jersey under the provisions of the Federal Constitution and, if so, does it affect title to the property in Spotswood, N.J.?
Defendant contends that the plaintiff, his former wife, and Eberle, her present husband, went to Florida for the purpose of evading the provisions of the laws of the State of New Jersey, the matrimonial domicile; that the divorce proceedings in Florida constituted a fraud upon this court and upon the Florida courts and that the decree of the Florida court is therefore void and not entitled to full faith and
With these contentions of the defendant I cannot agree.
A person may legitimately move to another state to avail himself of its divorce laws, the only requirements being absolute good faith in the taking up of residence in such other state and the intention of there remaining. Peff v. Peff, 2 N.J. 513, at 521 (1949).
A divorce decree may be given extraterritorial recognition under the full faith and credit clause of the Federal Constitution, if obtained in accordance with the requirements of procedural due process in the divorce forum, notwithstanding the other spouse was constructively served with process in another state and did not appear in the action. Hence, our local policy as expressed in
It is true that the full faith and credit clause of the Federal Constitution does not protect a divorce decree not based upon a bona fide domicile of one of the spouses whеn such decree is later attacked in another state. The decree of divorce in a foreign state is a conclusive adjudication for everything except the jurisdictional facts upon which it is founded, and domicile is a jurisdictional fact. Peff v. Peff, supra, at page 520; Williams v. North Carolina, 325 U.S. 266, 65, S.Ct. 1092, 89 L.Ed. 1577 (1945); Esenwein v. Pennsylvania, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608 (1945); Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949). However, the full faith and credit clause of the Federal Constitution requires that prima facie validity be accorded the divorce decree of a sister state and, while the presumption of the jurisdictional prerequisite of domicile is rebuttable, the burden of proof rests upon the party attacking the decree. Peff v. Peff, supra, at page 522; Esenwein v. Pennsylvania, supra.
The defendant has failed to carry the burden placed upon him of establishing by the proofs that the Florida court lacked jurisdiction because the plaintiff, his former wife, had not established a bona fide domicile in the State of Florida at the time of the institution of her divorce suit there. Consequently, I must hold that the Florida decree of divorce is entitled to full faith and credit in the State of New Jersey.
Conveyance of title to the Spotswood property having been made to Joseph Somonek and Mary Somonek, his wife, without limitation or qualification, they took title as tenants by the entirety. Pentek v. Pentek, 117 N.J. Eq. 292, 294 (Ch. 1934). So long as the marriage existed between defendant and his former wife, they continued to hold an estate by the entireties and such an estate is not subject to partition.
I find no support in authorities cited by defendant fоr the defendant‘s contention that the Florida decree of divorce is divisible and can work a dissolution of the marriage without affecting title to the real estate in New Jersey.
Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949), cited by the defendant, was a case where the matrimonial domicile was in the State of Connecticut. The husband mоved to Nevada where he obtained a decree of divorce; he then remarried in Nevada, moved to California, and died intestate a few months later. At the time of his death he owned real estate situate in Connecticut. Both his divorced wife and his widow in Californiа claimed the rights of a widow in the Connecticut real estate. In that case the Connecticut courts held that the Nevada decree of divorce was void because the husband had not established a bona fide domicile in that state, so as to confer jurisdiction upon thаt state, and that decision was sustained by the United States Supreme Court.
Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572 (1948), is also cited by the defendant. In that case, the matrimonial domicile was in the State of New York. The husband and wife separated and in 1940 the wife obtained a decree of separation in New York and was awarded
The premises in Spotswood not being partible, there will be a judgment for the partition of the premises by sale.