*1 1943 conviction and therefore was not a “conviction on a prior occasion” within the intendment of the Habitual Criminals Act.
For reversal—Justices Heher, Oliphant, Burling, Jacobs Brennan —5.
For Justice Vanderbilt and Justice affirmance —Chief Wachenfeld —2. ZIEPER, PLAINTIFF-RESPONDENT,
EMANUEL v. REBECCA ZIEPER, DEFENDANT-APPELLANT. Argued January 25, 1954 Decided March 1954.
Mr. for J. Mortimer Rubenstein cause argued appellant. for respondent.
No appearance The by court was delivered opinion have of a validity J. We here the question Heher, Court 6, 1949, final June by Superior granted judgment Los California, in and for County State May an entered interlocutory judgment Angeles, following liti- between these parties dissolving suit Zieper, Emanuel and Rebecca Zieper brought gant, 30, 1947. the wife on October in the action Emanuel California accused complaint treatment, and inhuman” infliction of “great of “cruel mental and an- physical pain, suffering grievous desertion; and the was entered guish,” default, an The com- want of answer. appearance residence in for more California plaintiff’s plaint alleged action, to the than one commencement year prior Los for more than three months in the County Angeles of the action. the commencement preceding *6 Service of the process the husband in Cali- upon absent fornia action made and was and by publication mailing; thereafter, on November the husband instituted in suit the old of Court of New Chancery enjoin Jersey prosecution the the of action for An California divorce. interim ad restraint was and the wife directed granted; was to show cause 9, 1948, on the should January why restraint not continue lite. pendente There was substituted service of wife, the mail process upon by and service registered personal in California, but there was no appearance. of the in the wife’s gravamen complaint falsity
allegation California, of residence in and thus a fraud willful the upon California court inhered in the jurisdiction and would vitiate for divorce thereafter entered. judgment the willful, And wife was with charged continued desertion and obstinate from the established separation “matrimonial domicile” in because Jersey, New ineffectual her husband, the will of against therefore a feigned in residence California to induce a divorce the there of grant “for an cause which while the were occurred alleged parties of and in in bona residents domiciled” New Jersey, fide 1937, 2:50-35, of R. now N. 2A :34-22. disregard S. J. S. decree 26, 1948, A was entered but the pro April confesso prosecuted wife nevertheless her California suit to final Thereafter, 25, 1949, on June a final decree was judgment. in the New Jersey entered suit the wife’s adjudging in of the action interlocutory divorce California judgment “was fraud and procured as to residence by imposition” the wife that the upon court, California in practiced “was in New wife and still domiciled” Jersey, “marital status” of “has been and now is parties always courts, and to the the New so subject jurisdiction” Jersey of null, “is and of judgment divorce void interlocutory in force or effect” New There was a Jersey. no continuance the restraint against prosecution California divorce, and as well other “any action proceedings “or matri for divorce husband against” involving in “or else parties, monial status” of either California final “any judgment Jersey; where other than in” New suit California thereafter entered of divorce” then or effect” force or and of no null, void was decreed “to be New Jersey. action,
In the October current New commenced willful, con- 1949, Emanuel seeks a divorce for Rebecca’s in Janu- tinued and desertion since the separation obstinate laid 1947. the desertion thus Rebecca answered ary denying Emanuel’s desertion her, countered with an allegation California, and its her residents” “while both were counterclaim, continuance, and, willful and obstinate counts California pleaded separate Emanuel’s deser- divorce, its subsistence and validity, *7 1947, and for a dissolu- 20, tion of her on January prayed child, tion of the the custody support marriage, answer the child. Emanuel’s maintenance for herself and the counterclaim the of the California validity to challenged the New jurisdictional pleaded divorce on grounds, of the California prosecution injunction against in that pur- action and the subsequent judgment proceeding the California divorce. nullify porting nisi for divorce in this Emanuel was awarded judgment suit, counterclaim save and there was a dismissal of Rebecca’s the and air allowance that she was child custody given The Appellate for the child’s Rebecca support. appealed. The found majority “testimony per Division divided. the deceit intentionally practiced upon evidential of suasively “in her by obtaining judg the California court” Rebecca in relation ment divorce in that jurisdiction,” presumably domicil, and the is not the therefore divorce jurisdictional the in New Each of Jersey. parties entitled to recognition desertion; of obstinate judg was absolved of charge and there wras an affirm reversed, divorce ment nisi for was her counterclaim as to the dismissal of Rebecca’s ance of and the to her for support allowances “individually,” But the services of counsel were sustained. the child and divorce the California was was of Bigelow opinion Judge Div. 1953). Thus, 25 N. J. 500 Super. (App. invulnerable.
559 under the case is here right on. Eebecca’s appeal V, 1(b). 1947 VI, Constitution. Article paragraph Section Emanuel did not appear on either appeal.
The basis of jurisdiction to matrimonial dissolve the domicil, status manendi; is or at least residence animus the dissolution of domicilii. lex governed The Full Faith and Credit Clause of the Federal Constitu tion, IV, A., Article C. 1, Section 28 implemented by U. S. 1738, 687, formerly enjoins acceptance extraterritorial § § aof decree of divorce obtained require with the keeping ments of procedural due en by a had process who spouse a Iona domicil in quired the state in divorce fide even granted, though whom spouse against decree was entered had remained in the state of the'original matrimonial domicil and had been neither appeared nor served with in the process pro state in which the divorce was instituted and ceeding recognition such divorce would offend the v. policy former Hollander state. Hollander, N. 70 137 J. & v. A. Eq. (E. 1945); Tonti Chadwick, 1 N. J. 531 2 (1949); v. 513 Peff, N. J. Peff Robison, Robison v. 9 J.N. 288 Williams (1949); (1952); Carolina, v. North 207, 317 63 Ed. U. S. S. Ct. 87 L. 45 ; Bell, 279 (1942) Bell v. U. S. Ct. S. L. Ed. 804 (1901).
Such is the of the Full exposition Faith Credit Clause federal supreme interpretative authority. *8 constitutional protection does extend not to of judgments the courts of sister states not invested with jurisdiction either the matter or subject of of the of the defendant. The person Full Faith and Credit Clause comes into operation only “the jurisdiction when of the court in another state is not either as to matter or impeached, subject the a. person”;- a decree of divorce “is conclusive adjudication of everything the jurisdictional founded, facts it except upon which is fact”; and, is a the jurisdictional domicil while issue of jurisdiction, once settled “after to appropriate opportunity had; their contentions has been afforded all who present to interest in its an cannot after adjudication,” a contest be
560
ato
litiga
the
“those not
relitigated
parties
between
parties,
of
actions
the interested
by
tion ought not to be foreclosed
be
should not
others,” and
domiciliary
“of
origin
the state
the
in
collusive,
an
recital
unfounded,
bound
if not
even
North
of
Williams v.
record
of another State.”
court
Carolina,
L. Ed. 1577
1092, 89
226,
325
65
Ct.
U. S.
S.
;
457,
L. Ed.
21
Whitman, 18 Wall.
(1945)
v.
Thompson
411
897
3 L. Ed.
;
481,
7
v.
Cranch.
(1874)
Duryee,
Mills
where
full
and credit
faith
(1813). For the
of
requirements
proceedings
in the divorce
defendant participated
jurisdictional
to contest
afforded full opportunity
1087,
issues,
343, 68 Ct.
S.
Sherrer,
v.
334 U.
Sherrer
S.
see
Coe,
S.
1089,
334 U.
v.
1097, 92 L.
1429
Coe
(1948);
Ed.
378,
And
compare
1451
Ct.
L. Ed.
(1948).
S.
69 S. Ct.
v.
336 U.
Rice,
later case Rice
S.
of
gether 'a in rem is proceeding longer it is It is not an “ordinary not a mere in action. personam use the Justice to words Mr. adversary proceeding,” Domi case, supra. Frankfurter second Williams cited in the cil in a to jurisdiction no plaintiff, significance personal will jurisdiction which action, yet is requisite effect, at least entitle the decree to extraterritorial divorce has been served with when the defendant neither personally process an not nor entered appearance. Although orig domicil, the plaintiff inal matrimonial the domicil of gives state is rise to a relationship adequate dissolution judicial numerous exercises of state power, not an Said Mr. Justice exception. is state a sov first Williams case: “Each Douglas marital has a concern legitimate ereign rightful its domiciled within The marriage borders. persons status Pro importance. .relation creates social problems large jection interests, and enforcement of offspring, property but a few of of marital are responsibilities commanding relations with which the field domestic .problems “it that each deal”; state plain must so state
561
virtue of its command over its domiciliaries and its large
interest
alter
institutions
can
within its
marriage
borders the
there,
status of the
domiciled
spouse
marriage
even
the other
is absent. There is
consti
though
spouse
no
tutional barrier if the form and nature
the substituted
**
*
service meet the
of due
requirements
process.
existence of
a state
alter the marital
power of
status
its domiciliaries,
from the wisdom of its
distinguished
exercise, is not
on the
causes of the
dependent
underlying
rift,”
“on the
domestic
but rather
relationship
domicil
creates and the
control which a state
pervasive
has over
and divorce within its
own borders.” Williams v.
Carolina,
287,
207,
North
317
63
The Pull Paith and Credit Clause the Consti “puts tution behind a fluid, instead of the too ill-defined judgment ”; concept it ‘comity’ but “does not make a sister-state * * a in another state judgment judgment *. ‘To it give the force of a in another state, it must be judgment made a * * * there.’ It can made judgment be there judgment if the court only to render purporting the original judgment power had to render such A judgment. one judgment state conclusive the merits in other upon state, every but if the only court of the first state had to pass on the power merits —had jurisdiction, is, to render judgment.” Carolina, Williams v. North 65 U. S. S. Ct. L. Ed. 1577 (1945).
And even though pleaded cause of action be forum, not entertainable the state of the either because been barred it had the local statute of limitations or was to local policy, obnoxious thereon obtained in *10 562
a
Williams
sister state is entitled to full faith and credit.
Carolina,
287,
207,
v.
87 L. Ed.
North
317 U.
63
Ct.
S.
S.
290,
279
5 Wall.
18 L.
Russell,
Christmas v.
Ed.
(1942);
557,
475
59
Wallick,
282,
Titus v.
306
S. Ct.
(1866);
U. S.
the Full
563 Esenwein v. 325 65 Ct. Compare Pennsylvania, U. S. S. See, also, 89 L. Ed. A. L. R. 1396 (1945). Frank, Klaiber v. N. J. 1 (1952). the California court’s burden overcoming of a marital status in that not been
finding jurisdiction has sustained. it the element Involving present does of a intention to establish bona habitation for an unlimited fide and indefinite rather than period, permanent temporary, Roth, revertendi, animus manendi animus non v. Kurilla 132 N. J. L. 213 domicil the matrimonial (S. 1944), Ct. *11 or is elusive to the residence when the is directed inquiry period Emanuel’s military service.
Before the marriage, Emanuel resided in New and York, Rebecca in New at their respective homes. family After the 1, celebrated marriage, May Columbia, 1942 at South Carolina, where the husband was then stationed at an Army they took post, residence and nearby lived there for month, a together when the wife returned to her parents’ home in New York City, there remained with brief intermittent absences to be husband, in the company of her her husband her joining meanwhile in New York when City n furloughspermitted, until his from the on discharge Army December 1945. This was in accordance with hus- band’s wishes and necessities. His military assignments were uncertain and covered area, a wide life home to- out, of the gether was He question. was on at occasion in military Tennessee, California, stations Missouri and she made visits to him at two, the latter in Missouri while he was hospitalization after an undergoing accident. And for 18 months he was overseas. liis Upon return to civilian life, cohabitation was resumed at the home of the wife’s later, some two or three parents; weeks Pater- they went to son, New and lived with his sister Jersey, at her apartment there for days, but four when the sister’s husband leaving returned from military Residence service. in Paterson was consideration, then under but came it. nothing Satis- within their factory means were not to be living quarters had; and returned once to the they home of the wife’s again the Eall until cohabited and there together
parents, in Los a Angeles, when the purchased dwelling parents there. California, home and domicil established their 1946; Rebecca in September, went to California parents her joined parents child, 29 preceding, and the born August clear, it month, consenting, Emanuel there following wife and He followed his he denies consent. now though November, in of an fulfillment child Los Angeles under the wife’s had at the time of departure, understanding intention common unmistakably indicating circumstances insists his he now there, though establish their domicil left for After the parents “to visit.” merely purpose at remained family and his Los Emanuel Angeles, and child until his wife City home in New York parents’ California; Angeles his arrival at Los and upon departed there. He home parents’ resumed at the cohabitation was conductor Los Angeles, employment trolley took January until there continued they living together his kinfolk the home of he and went off to when work quit New Paterson, Jersey. wife, Emanuel that his insists not though directly refusing, her Paterson, would not make home with him in and finally But a divorce. he failed to provide living suggested quar- there, conceded, ters an when she was, even on occasion he *12 doubt, to to his No there yield importunities. wore disposed emotional tensions and the mounting but pressures; primary certain, cause of their it was his difficulty, reasonably is un- or to himself altered cir- inability to his willingness adjust assume cumstances and the the responsibilities of He that state. admitted her upon discovery of pregnancy, him divorce; his wife told she was for that reason averse to a he did visit or with her “six not communicate or yet seven months” of the and made period no pregnancy, he to her And said that before the support. contribution in “asked if final Los he her she wanted separation Angeles Paterson,” answer,” she to come back to but him “no gave they then he back.” But had never lived “came together Paterson, sister; on the visit with his except four-clay in there- there; had he did not had a home or domicil not they after he wife, indirectly; communicate with his or directly did for her not evince a a home there disposition provide the an Indeed, child. mood is well contrary nigh return irresistible time after his inference. Por some quite to Paterson he worked at “odd in New jobs,” York, He New the while with his sister Paterson. living he said was unable to He contributed steady job.” “get that was child, to the of his but it would seem this support under exerted the District of Los pressure Attorney Angeles County. Division found that Emanuel “origi Appellate
nated” the his voluntary departure “last separation,” “by “never cohabitation”; terminated the marital that he had that his from which it be said may home of own provided had that after either never departed,” acknowledged whatever communi had he “exerted effort any separation that “the failure” wife, cate” with his and there is no proof the wife “to cohabit” with the husband was obstinate. We concur in these findings. fault the determinative con
But matrimonial is not for on the merits of sideration on present inquiry, for divorce cause of action California pleaded matter of the subject is conclusive if there was jurisdiction and it clear abundantly and of person; in California and con matrimonial domicil was established from voluntary there until the husband’s separation tinued her there until she and thereafter domicil was wife, his New York with her June City parents returned to domicil, of their having repenting change parents, and reestablished their home Los Angeles disposed in New York There not City. residence domiciliary their of residence to create here a temporary change bare mere domicil essential to jurisdiction semblance —a work a fraud upon residence to jurisdictional pretense the California court. force of this constitutional
And the operative *13 adverted the New rule Jersey is not conditioned by principle 566 106, J. Ward, 92,
to v. 5 N. that Shepherd upon the of the into of her husband domicil wife that “merges * * * domicile, and this tíre matrimonial of called unity domicil, one exists unless the wife acquires coverture during consent, by elsewhere the manifested acquies husband’s cence, otherwise abandonment, or or delictum." For by his the the would not on bona jurisdictional domicil depend, fide hus domiciliary wife, residence but rather on the offense, measured band’s of a or matrimonial guilt delictum standards; New would do violence to this full faith delineated in Williams concept and credit hus “A follows of her cases. covert’s residence that feme rests, band, which it but terminates the reason upon with ceases, union the two and an attitude when the between residences,” arises, each have different may hostility they A. And 1900). 62 N. J. 807 Eq. (E. & Tracy, v. Tracy Code, 129, actions section provides Civil California hus residence of the “neither the domicile nor divorce or domicile residence of shall deemed to be band be may “each an action wife,” but for such purposes upon proof or residence depending a domicile separate have We are presumptions.” not upon legal the fact and not but with here, overriding with State policy, concerned en jurisdiction to prerequisite law. Domicil federal under the constitutional to faith credit a divorce titling state federal and not essentially question mandate Rice, Cook, v. 342 Rice cited Cook supra; v. Compare law. L. v. Ed. 146 Sutton 157, Ct. (1951); 72 S. U. S. 96 L. Ct. Ed. (1952). 72 S. Leib, 342 S.U. sine non. qua is the jurisdictional Actual domicil cases, is the jurisdiction power pass in the Williams As said is founded domicil. The merits; and on jurisdiction on its marital status of domi interest has a basic State The Full and dissolution. to its alteration ciliaries, even extraterritorial inquiry Clause forecloses and Credit Faith jurisdictional And, fact. the existence beyond case, the Williams burden of “under second from the quote of the sister state’s finding juris- verity” mining
567 clietional fact of domicil assailant”; “rests heavily upon there unless be clear and evidence of this convincing juris dictional the burden deficiency, is not sustained. “A judg ment presumes jurisdiction over the matter and subject over persons.” Cook, Cook v. cited We do not supra. have here a sham of change domicil for the sole of purpose a divorce. It does not matter that the foreign judgment divorce is “for a cause which occurred while the parties resided” in New Jersey, or “for a cause which is not ground for divorce under the laws” of New if either of such Jersey, case; be the these federal constitutional principles supersede the state policy 2:50-35, embodied R. N. S. now J. S. :34-22, 2A in so far as there may Where, be conflict. here, there was jurisdiction of the res, matrimonial the for is conclusive and eign judgment immune wholly to extra territorial attack. v. cited Peff, Hubschman v. supra; Peff Hubschman, 140 N. J. 284 & A. Eq. (E. 1947); Giresi v. Giresi, 137 N. J. 336 A. Eq. &(E. 1945).
And, for the selfsame reasons, the New Jersey is without injunction efficacy on this The defend inquiry. ant wife was then in California; domiciled the marital res there; was and New Jersey to intrude powerless upon California’s jurisdiction of the matter subject the use of the in personam injunctive in a process manner not with the due comporting requirements of A process. court jurisdiction of equitable may, by acting upon person within the territorial party jurisdiction, enjoin the prose an action another cution forum between the same the same matter. parties subject The is involving restraint directed not the against litigant, jurisdiction. foreign It constitutes an exercise of equity’s jurisdiction in personam those within the reach of the operative upon court’s process. 6 v. N. J. 170 O’Loughlin O’Loughlin, (1951). See 28 Jur. 385. But such was Am. not the case here. The matri California, monial res was in certainly was the place domicil, the wife’s habitation and New did not have So far jurisdiction person. as state is power is concerned, there no distinction between a matrimonial 568
domicil and a domicil later
Williams v. North
acquired.
Carolina,
317
S.
63 Ct.
And now that the divorce validity of is estab foreign lished, the divorced wife application alimony *15 :34-23, 2:50-37, under N. J. 2A R. remains formerly S. S. determined; and had to that end. may to be be proceedings reversed; The is and the cause is remanded for judgment further to conformably this proceedings opinion. C. J. The raised only question (dissenting).
Vanderbilt, this on is the effect to appeal be to the California given divorce decree obtained the The wife. finds that majority the matrimonial domicile was established in California since the his wife there plaintiff joined “under circumstances a unmistakably common intention to establish indicating their domicile there” and the on basis of this it holds finding that since the had California court of both the jurisdiction matter and the its subject person must be accorded judgment faith full and credit in our courts.
The that conclusion the matrimonial domicile was in is to the the contrary California trial finding judge is as follows: plaintiff fide, ‘‘I find and that conclude the is and has been a bona Jersey. resident of the State of New It was to the State of New Jersey discharge that he returned after his from service and to brought However, which he his wife to make their home. she left days him within a few and returned to New York and ever since that Jersey has time refused to return to New to with live him. He go did back to visit and live with her in New York or two three however, home, Jersey times week. His was New and he was gainfully employed comparatively in Paterson. Within a short time after the she admits she asked her husband for a divorce; that she wrote to him for a divorce or an annulment while overseas, arrange he was and that she had her brother for a con- plaintiff family lawyers
ference with the and his for the re- spective question plaintiff getting sides to consider the a divorce from the defendant brother of the defendant indicated a willingness expenses proceeding. stand to The defendant part days upon took and within the conference a few afterwards being pregnant a doctor was found was examined it that she proposed as a result was then six divorce abandoned. Within weeks after the birth of child the was in State defendant family. plaintiff with California her endeavored to obtain employment a leave of absence from when it his was denied quit job get he his and went to his wife to back. to California come Jersey He him asked his wife to return to New with and she refused. thereupon He returned to New where he has since ever proceeding plain- maintained his residence. In the trial of this expressed willingness tiff now to make a home his wife forthcoming child and no like consent statement of from the marriage crystal defendant. It is desire obvious her to end the on the several occasions as set makes hereinabove forth clear acceding request reason for not him her husband’s live with Jersey.” in New The evidence was conflicting but the trial judge gave greater credence to the testimony plaintiff, characterizing that of the wife follows: .“Naturally, concerning her statements marital status lack sincerity testimony
tone of and the vibrant note of truth. Her vague, which, uncertain and contains admissions when considered testimony case, with all of the and evidence in the sub- leaves no *16 support stance to her demands for for maintenance or absolute divorce.”
Even without R.R. applying 1:5-3(a), requires when we find new facts in a case “due shall non-jury regard be given to the of the trial opportunity court judge witnesses,” I credibility of find myself with agreement the facts as found the trial this on crucial issue. judge No reason has been advanced majority rejecting of fact. findings his
I would therefore affirm the Appellate Division of the Superior Court.
For Heher, Oliphant, reversal—Justices Burling, Jacobs and Brennan —5.
For Justice Vanderbilt —1. affirmance —Chief