Schlemm v. Schlemm

Fkaítcis, J.

(dissenting in part). For many years the law has been that the State is a third party, in fact if not in name, in every divorce action. Its interest arises from a recognition that the family relation is essential to the fabric of our society. To sanction the destruction of marriage when it is accomplished by sickening sham is to ignore a malignancy eating at the vitals of our country. The State is present in proceedings for the dissolution of a marriage, or in actions like the present one questioning the validity of a foreign divorce judgment through the person of the court; not just the physical presence but, as Mr. Justice Brennan said, “by the conscience of the court.” In re Backes, 16 N. J. 430, 434 (1954); and see, Kress v. Kress, 1 N. J. 257 (1949); Sheehan v. Sheehan, 22 N. J. Super. 326 (App. Div. 1952); Welch v. Welch, 35 N. J. Super. 255 (App. Div. 1955); Piscioyta v. Buccino, 22 N. J. Super. 114 (App. Div. 1952); Duerner v. Duerner, 142 N. J. Eq. 759 (E. & A. 1948); Feickert v. Feickert, 98 N. J. Eq. 444 (Ch. 1926); N. J. S. A. 2:50-17; Nelson, Divorce and Annulment (2d ed. 1945) § 1.07. So grave is the judicial obligation that its satisfaction requires “that all proper defenses be made or compelled.” Giresi v. Giresi, 137 N. J. Eq. 336, 341 (E. & A. 1945). In my judgment, our duty can be performed here only by denying validity to the Nevada judgment.

*586 The trial court found that defendant’s divorce was procured by fraud. Under the proof any other conclusion is impossible. Schlemm bought and paid for the dissolution of his marriage; the price was $50,000. That price is out of the reach of many persons but, under the law as it is now clearly recognized by the majority opinion, formal consent to a divorce is the only payment necessary.

On July 25, 1953, three days after the wife’s separate maintenance action in this State was settled, but before the support and property division agreement was formalized by a writing, the husband arrived in Reno, Nevada. On July 30 what is undoubtedly the appropriate form letter used in these cases was dispatched to the wife by Nevada counsel, Clyde D. Souter, Esq. It advised that her husband “has been residing in Reno for some time past” and that a divorce action was to be instituted. Enclosed was a power of attorney to be signed by Mrs. Schlemm if she had no objection to submitting to the jurisdiction of the Nevada court. Kendrick Johnson, Esq., of Reno, was named therein as the attorney to appear for her, although it was suggested that she was free to nominate some other person. (In this connection, it is interesting to note that in Nappe v. Nappe, 20 N. J. 337 (1956), Isserman v. Isserman, 2 N. J. 1 (1949), and Roskein v. Roskein, 25 N. J. Super. 415 (Ch. Div. 1953), involving similar situations, the same two attorneys appeared for the parties.) The document was signed and returned, and the following day Mrs. Schlemm received the $50,000 payment.

It is obvious from the record that the sole purpose of the power of attorney was to aid the husband’s cause and to protect his interest. Mr. Johnson was authorized by the wife to act in the divorce action and “to answer or otherwise plead to the complaint * * :|! as in [his] judgment may be best and as fully to all intents and purposes as I could do if I were present personalty.” The answer filed thereafter, containing among other things a formal denial of the Iona fide residence of the husband, was manifestly de *587 signed to assist in the establishment of the fact of jurisdiction of the Nevada court rather than to contest it. The cross-examination of the husband consisted of nine questions put by Mrs. Schlemm’s ostensible attorney. Cross-examination is a device long honored in our trial process as a means of ferreting out the truth. In this instance, the only purpose served by the type of questions asked was to support an untruth. But, more important, Mr. Johnson never communicated with the wife in New Jersey at any time after receiving the power of attorney. He made no inquiry of her as to whether she wished to claim alimony or support, and he engaged in no effort to protect or advance her interests in that respect at the hearing. He made no attempt to incorporate in the final judgment the maintenance agreement which had been made orally in this State. So far as the record shows, no consideration was given to the issue of whether the divorce imperiled the New Jersey unformalized support settlement.

The testimony in the present matter, as well as the conduct of Schlemm from the consent dismissal of the New Jersey maintenance suit throughout the course of the Nevada action, indicates that he had no intention of abiding by the local support compact. In fact, the only reasonable conclusion to be drawn is that, for the purpose of wiping out any support claim she might have, he fraudulently induced her to appear in the Nevada proceedings by an attorney selected by his agent. Throughout this case he has contended that the New Jersey “understanding” did not constitute a binding agreement; that in any event under our law it is not an enforceable contract; that it did not survive the Nevada divorce; and that, since the Nevada judgment was entitled to full faith and credit, New Jersey could not constitutionally enforce any such agreement. To me the following conclusions are unavoidable. Mrs. Schlemm’s consent to appear was obtained, at least in part, by fraud. The divorce proceedings were collusive and not truly adversary, and finally, Schlemm did not establish a bona fide resi *588 dence in Hevada. In short, the foreign judgment is so infected with fraud that the full faith and credit clause cannot invest it with any lawful dignity. The principles of the Sherrer and Coe cases, referred to in the opinion of the majority, do not in my judgment give constitutional vitality to a judgment so tainted by the fraud of the husband upon the courts of two states and upon his wife. Nappe v. Nappe, 20 N. J. 337, dissent at page 357 (1956); Staedler v. Staedler, 6 N. J. 380, 390 (1951); and see, Isserman v. Isserman, 2 N. J. 1, 9 (1949).

I believe we must test the issue of fraud in cases such as this with a more sensitive measuring rod. A technical doctrinal approach for the asserted purpose of giving finality and security to a few transactions, usually involving property, fills a small hole in the dike and ignores the flood which is sweeping over the top.

In recent jrears, divorces in the country have totaled almost 400.000 annually; more than 1,000 every day. [1957—• 381.000 estimated, Annual Report, U. S. Department of Health, Education and Welfare, 85; 1956—382,000, Jacobson, “American Marriage and Divorce” (Rinehart & Company, Inc., Hew York, 1959), 90.] Current figures do not appear to be available to indicate the number of minor children involved, but for 1955, with 377,000 divorces and annulments, there were about 343,000 such children. These children were concentrated in 47% of the couples involved; 53% of them had no children. "American Marriage and Divorce,” supra 129. In 1953 there were 390,000 divorces involving an estimated 330,000 children, and in 1954, 379,000 divorces with 341,000 children. Vital Statistics—Special Reports, U. S. Department of Health, Education and Welfare, Volume '44, p. 140 (1956). The number of broken homes with children under 18 has increased from 1.5 million in 1950 to 2.8 million in 1956, and juvenile court delinquency cases more than doubled between 1948 and 1956, with a further large increase indicated for 1957. Annual Report, supra 55. A study made a few years ago by rep *589 resentatives of the Department of Institutions and Agencies revealed that in 1950 in Few Jersey there were 55,000 divorced persons, more than twice the 1940 figure. In that year, 54% of the divorces involved minor children, 78% of whom were under 15 years of age. These minor children represented 12% of all the children in the State. But the real tragedy was that 29% of all the delinquent children came from that group. Fo later study appears to have been made.

In the face of this distressing factual and practical situation, I cannot believe that the “strength of our democracy” rests in any way upon the enforcement of fraudulent and collusive divorce judgments of the type here in question. The interests of the State are subverted by what is plainly an acceptance of divorce by consent, particularly where the consent is procured, at least in part, by fraud. Unless the decisions of the highest tribunal of our country leave us no choice, we should not become aiders and abettors of the migratory divorce business. Characterization of the activity as a business is not inapt. Study of the reaction of Fevada to attempted competition shows that the pracices of the supermarket have been pursued to retain control of the industry. “American Marriage and Divorce ” supra 103-104. As a result, that state undoubtedly has the highest divorce rate in the country. See Report of the Joint Legislative Committee [of Few York] on Matrimonial and Family Laws (1957) 51.

The language of Justice Erankfurter, in his dissent in Sherrer v. Sherrer, 334 U. S. 343, 359 , 68 S. Ct. 1087, 1097, 1098 , 92 L. Ed. 1429, 1440 , 1 A. L. R. 2d 1355, 1366 (1948), ought to be the prevailing sentiment on the facts of this case. He said:

“I cannot agree that the Constitution forbids a state from insisting that it is not bound by any such proceedings in a distant State wanting in the power that domicile alone gives, and that its courts need not honor such an intrinsically sham proceeding, no matter icho brings the issue to their attention.

*590 That society has a vital interest in the domestic relations of its members will be almost impatiently conceded. But it is not enough to pay lip-service to the commonplace as an abstraction. Its implications must be respected. They define our problems. Nowhere in the United States, not even in the States which grant divorces most freely, may a husband and wife rescind their marriage at will as they might a commercial contract. Even if one thought that such a view of marriage was soeiallj' desirable, it could scarcely be held that such a personal view was incorporated into the Constitution or into the law for the enforcement of the Full Faith and Credit Clause, enacted by the First Congress. * * * That when the Constitution was ordained divorce was a matter of the deepest public concern, rather than deemed a personal dispute between private parties, is shown by the fact that it could be secured almost exclusively only by special enactments of the several legislatures and not through litigation in court. * * *

As a contract, the marriage contract is unique in the law. To assimilate it to an ordinary private contract can only mislead. * * * The parties to a marriage do not comprehend between them all the interests that the relation contains. Society sanctions the institution and creates and enforces its benefits and duties. As a matter of law, society is represented by the permanent home State of the parties, in other words, that of their domicile. * * *” (Emphasis added)

Ity the ruling in this case, the court has done what even Nevada would not do. With full knowledge that the divorce was procured by consent, that the jurisdiction of the Nevada court was based on a fraudulent residence, and in the face of an unavoidable conclusion that the husband imposed upon his wife in securing her signature on the power of attorney so that he could defeat, or attempt to defeat, the support agreement he had just made in New Jersey, it has accepted the divorce as valid. I do not believe that the United States Supreme Court decisions, which are said to command such a course, in fact require it. If they do, the state courts, of course, must bow. But in that event the marriage contract will have lost much of its vitality and much of its sanctity, íot it may be dissolved at the whim of the parties.

For the reasons stated, the divorce judgment should be declared void in New Jersey. As to the enforceability of *591 the support agreement made in this State, I concur completely in the opinion of the majority.

For affirmance—Chief Justice Weintraub, and Justices Burling, Jacobs, Proctor and Schettino—5.

For modification—Justice Erancis.