The opinion
Vanderbilt, C. J.
(dissenting). I do not believe that the majority of the court would have reached the conclusion they did in this case were it not for what the Supreme Court of the United States said in Davis v. Davis, 305 U. S. 32 , 59 S. Ct. 3 , 83 L. Ed. 21 (1938); Sherrer v. Sherrer, 334 U. S. 343 , 68 S. Ct. 1087, 1097 , 92 L. Ed. 1429 (1948); Coe v. Coe, 334 U. S. 378 , 68 S. Ct. 1094 , 92 L. Ed. 1451 (1948). But I cannot bring myself to believe that the Supreme Court of the United States by such expressions intended to countenance the conduct we find present in this case.
The constitutional guarantee of full faith and credit to a foreign judgment does not require adherence to the ideal when to do so would be as grotesquely incongruous with the idea of justice as it is in this case. This concept controlled our action in Staedler v. Staedler, 6 N. J. 380 (1951), and I see no reason to depart from our view there that:
“* * * No matter what others may pierceive to be the recent trend in the decisions of the United States Supreme Court in causes of this type we are constrained not to impute to that court an intent that would reduce the solemn relationship of husband and wife to the status just adverted to or that that court will acquiesce in a fraudulent scheme to use the principles of the Dwuis, Sherrer and Goe cases as a device to infuse constitutional virility into the judgment of a court of a sovereign state which has been deliberately deceived in proceeding to judgment in a cause over which in fact it had no jurisdiction.”
The plaintiff brought this action to set aside a decree of divorce which the defendant obtained in the State of Nevada on a counterclaim entered by him in an action for divorce commenced by her. The proceeding was adversary only in form; in reality it was of the “eonsentual” type, bought and paid for by the defendant for his convenience, with all of the fraudulent elements heretofore condemned by us, Staedler v. Staedler, supra; In re Rubin, 7 N. J. 507 (1951), *352 but with the added deception of turning the fraudulently conceived proceeding for divorce to his own favor.
I am impressed by the findings of fact made by Judge McLean in the opinion filed by him and by the subsequent findings made by Judge Nimmo to whom the matter was assigned after Judge McLean’s retirement. The plaintiff and the defendant were married in January 1938. Two children were born of the marriage. The marriage had taken place in Earmingdale, New Jersey, and the parties lived in that vicinity throughout their married life. In 1943 the plaintiff became suspicious of the defendant’s attentions to other women and because of this some disagreement resulted. Their differences were apparently reconciled to a certain degree. In 1941 they were living in a rather substantial home at Colt’s Neck, New Jersey, which was valued at approximately $60,000. By this time it was established that the defendant’s interest in other women was “more real than fanciful” and had caused a definite estrangement. They consulted the defendant’s attorney to work out their difficulties. When this attorney found that there were divergent interests involved he requested the plaintiff to retain her own counsel. He suggested several attorneys, one of whom she did consult. A reconciliation was effected and thereafter the Colt’s Neck home was sold and the net proceeds deposited in their joint bank account. Subsequent to that time, pending the finding of a new home, they lived at various places. In the summer of 1951 they were living in a motel at the New Jersey shore while the two boys were away at camp. During the occasions of their visits to the children at camp over weekends the plaintiff charged the defendant with being overly friendly with a female entertainer and this caused another cleavage between them. The plaintiff continued to reside at the motel where they were living, but the defendant left her and took up quarters at Earmingdale. This was in July 1951, and they did not live together thereafter. Because of the irregular intervals at which the defendant provided support for the plaintiff she found it necessary to consult her attorney again in January and February 1952. There *353 after regular support payments were made to the plaintiff by the defendant.
There seems to be no question as to the impropriety of the conduct on the part of the defendant at this time. On cross-examination he testified that he was living in Red Bank in an apartment occupied by himself, his son (evidently only one of them) and a woman whom he subsequently married after the Nevada divorce.
The settlement negotiations between the plaintiff and the defendant, through their attorneys, continued. The plaintiff testified that her New Jersey attorney sent her to a Clyde Souter, an attorney of Reno, Nevada, who is a specialist in divorce matters and who knows of the efforts of our courts to stamp out the making of arrangements here for violating our law by fraudulent divorces in Nevada. She left for Reno in May 1952 and received $1,000 from the defendant and a 1952 Mercury automobile to make the trip. The defendant evidently knew that the plaintiff was not going to make Reno her permanent residence. She was accompanied to Reno by the younger of the two boys. On arrival in Reno on May 11, 1952 she went to the office of Souter and talked with him about the case. She told him she was not going to remain in Nevada permanently. They waited for the terms that were to go into the agreement between the plaintiff and the defendant for support, since they were being prepared in New Jersey. There were telephone calls from Souter to New Jersey counsel and the final settlement agreement was not completed until the defendant, to the plaintiff’s surprise, arrived in Reno several days before the divorce hearing. The defendant at that time was accompanied by another woman and “a fellow named George,” whose last name the defendant could not remember, or never knew. All he knew about him was that he was from New York and went along for the ride. On his arrival in Reno, the defendant retained Kendrick Johnson to represent him. The plaintiff testified that Souter told her that the defendant first reported to him and that he recommended Johnson.
To the proceedings that were started by Souter on behalf *354 of the plaintiff, the defendant filed a counterclaim charging the plaintiff with extreme cruelty. On June 30, 1952, six weeks after the arrival in Nevada of the plaintiff, the case came on for hearing before the Reno court. On the day of the hearing the settlement agreement between the plaintiff and the defendant was concluded in the office of Souter, according to the terms that had been agreed upon in New Jersey. The defendant contended that he protested against including the provision for the purchase of a house for the plaintiff, and this resulted in a telephone call from Souter’s office to the attorney in New Jersey for the defendant, in the presence of the parties and their Nevada counsel. The term was ultimately included.
At the divorce hearing Souter had produced the plaintiff as his witness; he examined her as to her residence and the agreement, but asked her no questions to support her claim for divorce. Johnson, the defendant’s attorney, did not cross-examine her. Souter then told the plaintiff to step down and leave the courtroom. Johnson then had the defendant take the stand and testify as to his counterclaim. Souter did not cross-examine the defendant, nor did he call the plaintiff to deny the charges against her. Thereupon judgment was entered for the defendant on the counterclaim embodying the terms of the settlement agreement between the plaintiff and the defendant. That afternoon, Mr. Souter was paid by the defendant. A point is attempted to be made that the defendant did not pay Souter, but that the money came by telegraph addressed to Souter’s office. It appears, however, that the $1,000 paid was sent at the instance of the defendant and he knew what it was for.
The plaintiff was not informed by any one of the counterclaim until she was told after the hearing that her husband had been granted a divorce from her on the ground of extreme cruelty.
Two days later the plaintiff started her return journey to New Jersey in the car which the defendant had provided, headed for Shrewsbury to occupy the house which the defendant had agreed that she should have. The defendant returned *355 to Red Bank with his woman companion and two months later he married her. He had taken the precaution not to close title on the premises he gave to the plaintiff until his return from Reno, and it was not until that was done that he completed the agreement made by paying the plaintiff’s New Jersey attorney.
The trial court found that during the month of April 1952, prior to the departure for Reno, and while the parties were still residing in New Jersey, they agreed that the plaintiff should go to Nevada to obtain a divorce and that the husband would pay all her expenses including counsel fees, both in Nevada and New Jersey, and that he would provide her with an automobile and the expenses of the trip; that on her return he would provide her with a house to live in and $100 a week support for herself and the children, and would assign to her 49% of the stock of the Earmingdale Realty Company as security for the payment and would maintain insurance policies on his life in the amount of $20,000 payable to her as beneficiary with irrevocable designation.
In November 1952, after securing performance as aforesaid of the agreement, the plaintiff through her present attorney brought this action.
It is the defendant’s contention generally that the Nevada decree is entitled in its entirety to full faith and credit by this State and such being the case is res judicata as to the divorce and also as to all other issues raised by the plaintiff in this action. This contention of the defendant finds support only if we view the existing facts concerning the trip to Nevada and the preliminary arrangements made here as strictly adversary in nature and according to the narrow and tenuous inferences drawn by the defendant. I reach a contrary conclusion and believe that the case of Staedler v. Staedler, 6 N. J. 380 (1951) is entirely dispositive of this point. In speaking of the Davis v. Davis, 305 U. S. 32 , 59 S. Ct. 3 , 83 L. Ed. 26 (1938); Sherrer v. Sherrer, 334 U. S. 343 , 68 S. Ct. 1087, 1097 , 92 L. Ed. 1429 (1948); and Coe v. Coe, 334 U. S. 378 , 68 S. Ct. 1094 , 92 L. Ed. *356 1451 (1948), cases cited by tbe defendant in this proceeding, we said in Staedler v. Staedler, supra, 6 N. J., at page 390:
“We have carefully considered these eases and we do not believe that the full faith and credit clause of the Federal Constitution was ever intended to be used as a shield for or to give validity to the type of contract here under considez’ation or to approve the acts performed pursuant thereto in cases where the ultimate purpose was to commit a fraud upon the jurisdiction of a court of one of the several sovereign states. Jurisdiction depends upon the existence of basic facts and a 6ona fide finding that tbe necessary facts actually exist, and where they do not exist it cannot be conferred upon any court anywhere by consent of the parties or by fraud. It presupposes a T)ona fide examination by a court of competent jurisdiction of such facts before any judgment can be entered by such court.
It cannot be disputed in this case that the iona fide domicile of these parties was and is in the State of New Jersey and that this State has a paramount interest in the status of its married domiciliaries. * * *”
The purpose of the agreement, negotiated here in New Jersey and subsequently manifested by the document prepared in Fevada and included in the terms of the divorce decree, without any doubt was to effect a “friendly,” even though illegal, divorce proceeding according to the swift and convenient practice of Fevada, without any idea that there was to be established a Iona fide residence for either party in Fevada. As Judge McLean in his original opinion below stated with reference to the Fevada decree:
“Unquestionably, it was the product of fraud upon the jurisdiction of Nevada in which both plaintiff and defendant participated and this fraud had its inception and is grounded in the agreement made in New Jersey during the month of April, 1952.”
Contracts which have as their basic purpose the divorce of the parties thereto are contrary to public policy, illegal and void. See authorities cited in Staedler v. Staedler, supra, 6 N. J. 380, at page 389. I find no difficulty in agreeing with the trial court’s conclusion that the agreement for this specific purpose was made in this State, and the performance thereof entered upon here and consummated in the State of *357 Nevada. We should not have to stand by, out of respect for the full faith and credit clause, and waive the operation of our law upon a judgment procured in violation thereof, when in truth and in fact it is also a fraud upon the court rendering the divorce decree to have procured the same under these circumstances.
The Davis, Coe and Sherrer cases, supra, stand for nothing more than the proposition that full faith and credit must be given by the courts of one state to a decree of a sister state so as to bar any collateral attack on jurisdictional grounds, not permitted by the rendering state itself, where the attacking party participated in the action giving rise to the decree or judgment and was accorded a full opportunity to be heard. In the Staedler case, supra, we understood this principle to apply only to true adversary proceedings, where absolute independence and voluntariness prevailed and where the application of the full faith and credit doctrine operated to advance justice rather than to give shield to a fraud upon the courts.
The case of Isserman v. Isserman, 11 N. J. 106 (1952) principally relied upon by the majority as dispositive of this issue before us, turned on the fact that it was a true adversary proceeding and, therefore, is factually at odds with this case. The elements of independence and voluntariness controlled the wife’s actions in the Isserman case, while here these fundamental ingredients of the doctrine expounded by the Davis, Coe and Sherrer cases have been found by the trial court, and I think correctly, factually not to exist.
By approving the defendant’s course of conduct our court is suggesting an ingenious scheme to avoid any of the entanglements indicated by the Staedler and Isserman cases by having the divorce granted to the husband on his counterclaim to the wife’s action. The conduct of Souter, the wife’s Nevada counsel, in - failing to introduce any testimony on her behalf as to the merits of her complaint for divorce or in failing to cross-examine the husband as to his testimony given to sustain the merits of his cross-claim for divorce, in view of the factual indications that the wife understood *358 that she was to go to Nevada and procure a divorce, lead to but one conclusion — that the husband dominated the entire situation from beginning to end, even to the suppression of a suit for his all too obvious adultery. Furthermore, I see only “extrinsic” fraud perpetrated by the husband in falsely testifying before the Nevada court that he had no knowledge or information sufficient to form a belief as to the allegations of his wife concerning the bona fides of her residence in the State of Nevada, when he actually knew by virtue of the agreement made that she was to live in a house in Shrews-bury, New Jersey, to be provided for by him. An added feature of the defendant’s scheme, if successful, is that it saves him the tedium of establishing a seeming “residence” in Nevada.
In a case as vigorously contested as this one was, we are bound to follow the findings of the trial judge, unless there are no reasonable bases in the evidence for sustaining them, B. B. 1:5-3.
Accordingly, I would vote to affirm the judgment of the court below except insofar as it holds that the plaintiff was a full partner in the Farmingdale Realty Corporation and the Nappe-Smith Manufacturing Company and entitled to an accounting for her interest in these corporations. The only basis for such holding is the alleged statements made by the defendant to the plaintiff that she was a full partner which are denied by the defendant; the fact that the parties had joint bank accounts prior to their marital discord and held realty as tenants by the entirety; and the fact that the plaintiff had shares of stock issued in her name although she never saw them.
The plaintiff’s contention that she was a partner in these enterprises stands uncorroborated in even the slightest understandable degree. The joint bank accounts and the holding of real property by the entirety could be incidents of the marriage relationship, totally unrelated to any similar intent with respect to the business managed and carried on by the husband, and to hold such flimsy proof as sufficient to corroborate a claim of partnership would be to place serious *359 incidental consequences upon joint property holding. Purther, the record indicates that two shares of common stock of the Nappe-Smith Manufacturing Company were issued in the plaintiff’s name and the certificate was endorsed by her in blank. The total outstanding shares of this company were ten shares of common stock, of which the other eight were held in the name of the defendant with the exception of one share in the name of the defendant’s secretary, and 1909 and a fraction shares of preferred stock all of which were held by the defendant. At no time was there ever any more than one share of the Parmingdale Realty Company stock issued in the plaintiff’s name. The plaintiff admitted she had never paid anything for her alleged interest in either of these corporations and there is no basis in fact or law for holding any gift of the alleged partnership interest in her.
Mr. Justice Heher has authorized me to say that he joins in this opinion.
Wacheneeld, J., concurring in result.
For reversal in part — Justices Oliphant, Wacheneeld, Burling, Jacobs and Brennan — 5.
For affirmance — Chief Justice Vanderbilt, and Justice Heher — 2.