Feickert v. FeickertFeickert v. Feickert
On October 29th an order of publication was moved for and made, requiring Mr. Feickert to answer Mrs. Feickert‘s petition on or before December 30th, or in default thereof such decree would be made against him as the chancellor should think equitable and just; and it was further ordered that notice of the order, prescribed by law and the rules of this court, should, within twenty days thereafter, be published, and that a copy of the petition and of the order, as service substituted for personal service of process within this state, be made upon the defendant as prescribed by the rules of this court. This was done, as appears by the proofs of publication and service filed in the cause, Mr. Feickert being served personally with a copy of the petition and certified copy of the order of publication on November 14th, 1925, at the office of his attorneys, Messrs. Price & Hawkins, in Reno, Washoe county, Nevada. The defendant‘s time for answering expired December 30th, 1925, and, he having defaulted in pleading, petitioner‘s counsel now moves for an order of reference to a special master to take depositions and other evidence to substantiate and prove the allegations in the petition, and to bring on the hearing of the cause ex parte. This order will be denied, at least, at this time, for reasons hereafter to be stated.
The parties to this suit are prominent people, Mr. Feickert in banking and Mrs. Feickert in political circles. Consequently, their matrimonial infelicities have received considerable newspaper notoriety at various times. With the knowledge that has come to me through newspaper articles and that obtained from the affidavits filed in this cause, I cannot shut my eyes to the fact that the defendant in this cause, Mr. Feickert, has obtained a divorce from his wife, the petitioner, in the State of Nevada. Current newspaper reports, which are doubtless true, are to the effect that Mr. Feickert (undoubtedly relying upon his foreign decree and the validity of it) he has contracted another marriage.
Mrs. Feickert assumes to treat the Nevada proceedings and decree as invalid. I am not permitted to indulge any such presumption. In law the presumption is the other way. If
Mr. Feickert, through confidence in the integrity of his Nevada decree, or, perhaps, indifferent to it, has failed and neglected to answer in this suit and assert its validity as a bar to his wife‘s proceeding. The Divorce act (
In ordinary cases the parties being sui juris must protect themselves and defend their own interests. In re Shreve, 87 N.J. Eq. 7; affirmed, Ibid. 710. But divorce cases being sui generis the public is a party to them, whose rights are represented and protected by the court. And as the law favors marriage and disfavors divorce, it is the policy of the law, legislative as well as judicial, that all proper defenses be made or compelled. See Grant v. Grant, 84 N.J. Eq. 81; Divorce act § 18, supra. Now, in the language of the law: “I am credibly informed and verily believe” that Mr. Feickert has obtained a divorce in the State of Nevada, and that it is, presumably, valid. Of course, it may be overcome for fraud. I am, therefore, constrained to insist that that divorce shall be pleaded and successfully attacked as invalid before a final decree can be made in this case in favor of the petitioner.
In Magowan v. Magowan, 57 N.J. Eq. 195, Vice-Chancellor Reed held that a divorced wife cannot maintain an action for maintenance against her former husband. And, of course, a divorced wife cannot maintain an action for divorce against her former husband. In this same Magowan Case on appeal (Magowan v. Magowan, 57 N.J. Eq. 322) the court of errors and appeals held that where a plaintiff in a suit for divorce is required by statute to have been a bona fide resident of the state in which his suit is brought
That is the crux of this case: Is the Nevada decree fraudulent? If not, Mr. Feickert‘s divorce is as valid here as there. If it is fraudulent, it is invalid here, though it may be treated as valid there.
In Fairchild v. Fairchild, 53 N.J. Eq. 678, the court of errors and appeals held that the only ground upon which the judgment of a court of general jurisdiction can be disregarded in another state is — first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and second, where the adjudication of the foreign court has been obtained by fraud. And (at p. 679) it was observed that that suit was begun in the court of chancery by the respondent for the purpose of compelling her husband to maintain her, and, incidentally, to have the decree of the Kansas court (divorcing them) declared null and void. In Magowan v. Magowan, supra, it was stated that the bill was for maintenance by the appellant against her husband, and that as an antecedent to the primary relief prayed for she sought to have declared void a decree of divorce rendered by the district court of the Territory of Oklahoma in a suit brought by her husband against her.
In Cole v. Cole, 96 N.J. Eq. 206, this court held that a Nevada divorce decree, which shows that petitioner therein was a bona fide resident there, is valid here in the absence of an allegation of fraud.
Our Divorce act (
“Full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections 5, 6 and 7 of this act. Nothing herein contained shall be construed to limit the power of any court to give such effect to a decree of annulment or divorce by a court of a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this state shall go into another state, territory or country, in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state.”
This provision that full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States, is but declaratory of the full faith and credit clause of the federal constitution and acts of congress. And, according to all the cases, a decree of divorce obtained in a sister state by a person who has a proper residential status there, is valid everywhere, unless procured by fraud. If the Nevada decree in the Feickert Case contains recitals which, on their face, ascertain that Mr. Feickert had proper residential status there to begin and prosecute his suit in that state, and the decree adjudges that fact and grants a divorce, it cannot be denied that that divorce is valid in New Jersey, unless procured by fraud.
Now, of course, New Jersey can grant a divorce only to parties who are married, and cannot divorce parties who are already validly divorced. To divorce parties who are not married would be a nullity. And the court will not do a vain thing. Zudiak v. Szuryk, 93 N.J. Eq. 559, 561.
I am aware that in several cases in chancery the provision of our statute above quoted has been given force and effect. See Jung v. Jung, 85 N.J. Eq. 372; Lister v. Lister, 86 N.J. Eq. 30; Thompson v. Thompson, 89 N.J. Eq. 70; Hollingshead v. Hollingshead, 91 N.J. Eq. 261; Sechler v. Sechler, 94 N.J. Eq. 47; Garrabrant v. Garrabrant, 95 N.J. Eq. 136. But in each one of them all the facts were before the court. In this suit all reference to the Nevada case is omitted.
The point in this whole matter in its present situation is, that the petitioner‘s pleading does not give the court to be informed of the Nevada suit, and the decree of divorce apparently there obtained. The petitioner in this case may be advised and believe that the Nevada decree is void here, but, nevertheless, in my judgment, it is her duty to plead the existence of that decree and allege that it is fraudulent and void and no impediment to this court granting her a decree of divorce, as was done in the Fairchild and Magowan Cases, and as was done also in the Sechler Case. In the Hollingshead Case it appears not to have been done, but there the defendant appeared and set up the foreign decree as a defense. No question was made concerning the pleadings, and, the foreign divorce being before this court, it was necessarily considered by it.
Of course, if a resident of this state goes into another state to obtain a divorce and does not acquire a bona fide residence there, such divorce will be null here, but its nullity will have to be proved here. And it is not in every case of one going into another state for the purpose of obtaining a divorce that this court will adjudge such divorce fraudulent for that reason. Judge Vroom, speaking for the court of errors and appeals in Wallace v. Wallace, 65 N.J. Eq. 359 (at p. 364), said: “I concur entirely in the principle laid down by the special master in this case that a person may legitimately move to another state in order to avail himself of the laws of that state, and this includes, necessarily, the right to remove into the jurisdiction of this state for the purpose of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and the animus manendi; in other words, the factum of residence and the animus manendi proves the domicile.” Magowan v. Magowan, 12 Dick. Ch. Rep. 324; Harral v. Harral, 12 Stew. Eq. 285; see, also, Rinaldi v. Rinaldi, 94 N.J. Eq. 14.
The petitioner in this case could not be permitted to make proof of the Nevada proceedings and decree and attack them as invalid, without pleading them. Testimony to be relevant and admissible must be such as will tend to prove a fact or facts in issue. Marsh v. Marsh Heating, c., Co., 57 N.J. Law 36; Perkins v. Perkins, 22 N.J.L.J. 174. The petitioner in the case at bar has not put the invalidity of the foreign divorce of the defendant in issue by pleading it. This will have to be done if she is to proceed.
To give effect to the above views the petitioner will be allowed twenty days in which to amend her petition by setting out the Nevada proceedings and decree and allege their invalidity, which she will, of course, be allowed to prove, or, in default thereof, a disinterested solicitor will be appointed under the Divorce act, section 18, to plead those proceedings and decree by way of defense.