Newburgh v. Arrigo

HANDLER, J.,

concurring.

The major question presented in this case is whether Joan Newburgh is entitled to receive pecuniary benefits under the *549 Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., as the surviving spouse of Melvin Newburgh, who lost his life in an automobile accident. Joan’s legal status as the wife — now the surviving widow — of Melvin is challenged by Steven, who is Melvin’s son of a prior marriage. Steven claims that Joan, having procured an allegedly invalid Mexican divorce almost 20 years ago from her first husband, was not legally married to his father. Thus, the core issue in the case is the validity of Joan’s Mexican divorce. That issue might be more precisely described, not as the validity vel non of that Mexican divorce, but as the legal effect to be given that divorce for purposes of resolving the competing claims of each of the major party protagonists under the Wrongful Death Act.

I concur in the result reached by the Court in this case. Quite properly, it has determined on this record that no legal credence should be given to the asserted invalidity of Joan’s ancient Mexican divorce. I write separately, however, to point out that the rule invoked by the majority — the presumption of validity of the last of several ceremonial marriages and the sufficiency of proofs to overcome that presumption — is neither apt nor adequate to determine the legal status of the claimants as beneficiaries under the Wrongful Death Act. The rule selected by the majority fails to focus upon the legal effect of the former divorce. While the result reached by the Court is tantamount to giving no legal effect to the Mexican divorce, that decision should be based upon the application of equitable principles because we are dealing with a matrimonial event — a putative divorce and its effect upon a subsequent marriage in the context of a wrongful death claim.

The majority has described the conventional understanding of the rule that presumptive validity attaches to the last of two or more ceremonial marriages and that the presumption can only be overcome by clear and convincing evidence that such a marriage is not valid. Ante at 538. It also, commendably, clarifies the coverage of this rule as embracing not only claims arising under the Workers’ Compensation Act but any contro *550 versy concerning the legitimacy of a marital relationship. Ante at 536.

The rule, however, is primarily one of convenience, designed to place the evidential burden upon the party who is challenging the status quo. One. who contends that a marriage is meretricious should be required to prove that proposition. See Kazin v. Kazin, 81 N.J. 85, 96 (1979); Dawson v. Hatfield Wire & Cable Co., 59 N.J. 190, 193 (1971). While the rule may in this sense be fair and pragmatic, it frequently has nothing to do with the merits of the underlying controversy. In this case, for example, the rule is totally unrelated to the real controversy between the parties — the validity of Joan’s prior Mexican divorce from her first husband and Steven’s right to impugn that divorce.

In addition to its remoteness from the merits of the controversy, the rule of presumptive validity of the last ceremonial marriage was arguably unfairly invoked at the trial and improperly applied on appeal in this case. Indeed, it was almost inadvertance that gave rise to the question of the validity of the Mexican divorce in these proceedings. It was injected in the case through the cross-examination of Joan and was not really projected as an issue to be tried. Hence, while on the record Steven did not produce clear and convincing evidence to overcome the validity of Joan’s marriage to his father, it is apparent that neither side was truly prepared to contest or defend the validity of the Mexican divorce. A result reached upon an inadequately tried basis hardly inspires confidence as to either its correctness or its fairness.

The presumption approach has another distinct disadvantage which I cannot ignore. Even though the party claiming that a prior divorce was invalid bears the burden of proving that proposition by clear and convincing evidence, the fact remains that this burden can be met. Therefore, under the majority’s approach, a situation may arise in which the validity of an ancient divorce is challenged successfully. Yet fairness and equity may demand that, after the passage of so many years and *551 the absence of any showing of knowingly wrongful conduct on the procuring party’s part, such long-settled matters should now be beyond attack.

These considerations impel me to urge that the controversy in this case be resolved by the application of equitable principles which focus solely and sharply upon the actual conduct of parties in resolving the merits of the central issue. The unerring focus of equity upon party conduct, I submit, is uniquely appropriate for the resolution of matrimonial disputes and especially conducive toward reaching the fair, sound, and right disposition — that elusive ultimate end that is often so difficult to identify and demonstrate in matrimonial causes.

I am suggesting neither a radical departure nor a giant step from traditional approaches in matrimonial litigation. The majority has observed that the presumption in favor of the latest ceremonial marriage implies a presumption in favor of the validity of prior divorces, which presumption “is akin to estoppel to deny the validity of a prior divorce.” Ante at 538. It also discusses some of the equities in this case. Ante at 539. Hence, the equitable doctrine of estoppel is but a logical extension of the notions implicit in the majority’s analysis. Estoppel should be invoked to resolve the controversy in this case because an analysis based upon the equities would provide greater clarity and sureness as to the result reached.

In applying the equitable doctrine of estoppel, it is especially important to underscore the relevance of public policy as an element of estoppel in the context of matrimonial actions. In the past, demands of public policy have led courts to deny estoppel where it otherwise would have been applicable. Thus, to prevent spouses from “frustrating the policy of our own statute which puts the dissolution of the marriage status beyond the control of the parties,” courts have refused to apply estoppel to prevent a challenge to a foreign divorce. Tonti v. Chadwick, 1 N.J. 531, 537 (1949). See Warrender v. Warrender, 79 N.J.Super. 114, 121 (App.Div.1963), aff’d o. b., 42 N.J. 287 (1964); Hollingshead v. Hollingshead, 91 N.J. Eq. 261 (Ch.1920).

*552 It follows that where public policy, as recognized by our matrimonial laws, calls for the vindication of different social values, that public policy should be heeded. If public policy is sufficiently vigorous to bar the application of equitable principles of estoppel, e.g., Tonti, public policy surely has the prepotency to command an estoppel. Thus, we have recognized that public policy demands should be given deference in determining whether estoppel can be invoked to prevent the invalidation of divorces. In Kazin, 81 N.J. at 99 , we stressed that in applying the equitable doctrine of estoppel, “full weight should be given the legislative objectives governing divorce.” The Court there also spoke of a flexible approach to estoppel based both on individual fairness and public policy, recognizing that the “application of * * * estoppel cannot be subject to fixed and settled rules of universal application, but rests largely on the facts of each particular case.” Id. at 94 . Scholarly commentators have also noted that estoppel has often been used to effectuate contemporary policy views about marriage and divorce. Professor Clarke wrote:

Estoppel, or quasi-estoppel, as some cautious courts prefer it, has been shown to be approved by the great majority of courts. It rests not upon vague notions of fairness or equity or relative rectitude of the parties, and not upon the dubious distinction between private and matrimonial lawsuits, but rather upon the contemporary view that when a marriage has ended, and its end has been recognized by divorce, little is to be gained by treating it as if it were still in force. To this social purpose, and to the doctrine of estoppel itself, therefore, there can hardly be serious objection. [Clarke, “Estoppel Against Jurisdictional Attack,” 70 Yale L.J. 45 , 68 (1960) ]

Cf. Weiss, “A Flight on the Fantasy of Estoppel in Foreign Divorce,” 50 Col.L.Rev. 409, 428-430 (1950) (New York courts used estoppel to circumvent harsh New York divorce laws).

This Court has frequently explicated our public policy concerning matrimony and divorce in a wide variety of contexts. The source of that policy is the Divorce Act of 1972, N.J.S.A. 2A:34-1 et seq. The polestar of that policy is fairness, equity, flexibility and solicitous concern for the welfare and happiness of the individuals involved. E.g., on property included in equitable distribution, see Kikkert v. Kikkert, 88 N.J. 4 (1981) (right to *553 receive unmatured pension benefits included); Mey v. Mey, 79 N.J. 121 (1979) (trust corpus which came under spouse’s control during marriage included); Kruger v. Kruger, 73 N.J. 464 (1977) (income interest subject to equitable distribution); N.J.S.A. 2A:34-23; on irrelevance of fault in determining equitable distribution, see Painter v. Painter, 65 N.J. 196 (1974); Mahne v. Mahne, 147 N.J.Super. 326 (App.Div.1977), certif. den. 75 N.J. 22 (1977); on modifying settlement agreements, see Peterson v. Peterson, 85 N.J. 638 (1981) (alimony agreement subject to equitable evaluation beyond that performed in adjudicating normal contractual rights); Lepis v. Lepis, 83 N.J. 139 (1980) (modification of support and alimony provisions of settlement agreement available to offset inflation); on granting divorces and annulments, see Faustin v. Lewis, 85 N.J. 507 (1981) (court permitted to weigh equities in deciding whether to grant annulment to wife who married for sole purpose of becoming lawful permanent U. S. resident); Chalmers v. Chalmers, 65 N.J. 186 (1974) (dual divorce available); N.J.S.A. 2A:34-2(d) (no-fault ground for divorce now available after 18-month separation); on awarding alimony in an annulment action, see Kozlowski v. Kozlowski, 80 N.J. 378 (1979); Callaghan v. Leonard, 152 N.J.Super. 95 (Ch.Div.1977); N.J.S.A. 2A:34-23; on child custody, see Beck v. Beck, 86 N.J. 480 (1981) (courts authorized to decree joint custody). See also Kazin, 81 N.J. at 94 (courts advised to “give full range to equitable doctrines in dealing with matrimonial controversies”) (husband estopped from asserting invalidity of wife’s prior divorce which he helped her secure).

These contours of our public policy have not only been defined by our operative matrimonial statutes and judicial decisions but also by other official efforts and contributions to our laws and procedures in the matrimonial field. Thus, several years ago a special committee under the chairmanship of Justice Pashman was constituted by the Supreme Court to recommend judicial improvement in the field of matrimonial practice and adjudication. In authorizing the formation of this committee, Chief Justice Hughes expressed the Supreme Court’s “acute concern *554 over * * * the plight of persons presently caught in the web of matrimonial litigation.” 102 N.J.L.J. 545 , 552 (1978). This was followed by two comprehensive reports now adopted by the Supreme Court, signalling major and far ranging improvements in the matrimonial area to further the ends of individual and social justice. See Phase Two Final Report of the Supreme Court Committee on Matrimonial Litigation, 108 N.J.L.J. 41 (Special Supplement) (July 16, 1981); Interim Report of the Supreme Court Committee on Matrimonial Litigation, 104 N.J.L.J. 107 (1979).

An important element of this public policy and substantive law concerning marital relationships of New Jersey citizens relates to the status of previous marriages and divorces. We have stated, with pointed emphasis, that the objectives of the policy

reflect a genuine concern for the realities of the marital relationship and allow the expeditious, orderly and fair dissolution of destroyed marriages * * \ There remains little, if any, interest in encouraging the resurrection of deceased marriages, even if pronounced dead by other tribunals whose processes are not completely consistent with our own. [Kazin, 81 N.J. at 99 ]

As recognized by the majority, Kazin encourages an expanded approach to estoppel, combining elements of fairness in the traditional sense with the demands of public policy. In this case considerations of public policy constitute an important and weighty factor that militates against the allowance of Steven’s claim that the marriage between Joan and his deceased father is meretricious. The only basis for this assertion is the alleged invalidity of the Mexican divorce which Joan obtained in 1962 from her first husband. That event occurred almost twenty years ago. No one, other than Steven, has even questioned the authenticity of this divorce. Further, Joan married a second time and remained married for several years before obtaining a divorce from her second husband. Again, there is no suggestion that this second marriage should be impugned or stigmatized as bigamous. Surely, considering that two decades have passed since the Mexican divorce and that the State has given its imprimatur to Joan’s subsequent marriages and divorces, there *555 is no reason to believe that she and Melvin did not consider themselves legally married. Furthermore, there is no indication that Joan at any time in her marital history purposefully sought to evade the matrimonial laws of this State or that she egregiously flouted social conventions and policy. Moreover, as previously noted, the forced recognition of dead and mummified marriages is clearly contrary to public policy.

In addition to considerations of public policy, elements of fairness call for an estoppel against Steven. As noted by the majority, Steven consented to Joan’s appointment as the administratrix of his father’s estate and to her taking the widow’s one-third share of the estate under the intestacy statute. Ante at 540. While Steven may not have known of Joan’s old Mexican divorce, it seems apparent that such information could have been obtained had it been sought. Moreover, in these proceedings Steven has never repudiated his prior stance regarding the legality of his father’s marriage to Joan and her status as his widow under the intestacy laws. Steven should not be allowed to gain a tactical and telling advantage over his stepmother Joan in these proceedings by assuming inconsistent legal positions. Estoppel would prevent that from happening. 1

*556 The majority has also implicitly recognized that in these circumstances, Melvin would have been equitably estopped from denying the validity of Joan’s divorce from her first husband and of his marriage to her. Ante at 539. I agree with this observation, as well as the justness of derivatively giving that estoppel binding effect upon his heir, Steven. Id.

Courts have recognized that in appropriate circumstances an estoppel binding an ancestor could also bind his heirs. See, e.g., In re Davis’ Estate, 38 Cal.App.2d 579, 585 , 101 P.2d 761, 764 (1940) (son estopped from challenging stepmother’s Nevada divorce in heirship proceeding because father, who encouraged and paid for divorce, would have been estopped); In re Anderson’s Estate, 121 Mont. 515, 526 , 194 P.2d 621, 626 (1948) (estoppel applied in will contest between children and stepmother). This is such a circumstance. This case concerns wrongful death benefits. Such benefits are intended to compensate those whom the deceased had a legal obligation to support and who were actually dependent upon him. Since those individuals have now lost their, means of support through the wrongful death of the deceased, they are entitled to a recovery to compensate them for their pecuniary loss. See Alfone v. Sarno, 87 N.J. 99 (1981). Melvin was legally obligated to support Joan and she was dependent upon him. He would not have been able to invoke the invalidity of the prior Mexican divorce to avoid that support obligation. Viewed in this light, it would be an ironic result if *557 the decedent’s son were to be allowed to use that prior divorce to deny Joan a recovery designed to replace the support she was entitled to receive from her husband before his death. Steven' should not now be able to assert rights which Melvin no longer could claim at the time of his demise.

In sum, the strong public policy generated by the facts of this case impel a finding that Steven be estopped from asserting his claim. This is not a case where there is any allegation of fraud by the spouse upon the court. Nor is there advanced any assertion of deceit or unfairness by Joan upon any of her spouses. In this case, although Joan may have acted improperly, her legal transgressions cannot now be viewed as so great as to be inexcusable or beyond the therapeutic reach of the estoppel doctrine. Moreover, the result of finding an estoppel in this case cannot be said to be manifestly unfair to Steven since he has taken inconsistent positions regarding the validity of the marriage. The practical result of an estoppel is merely to prevent Steven from denying legal recognition of Joan’s status as an actual dependent entitled to pecuniary benefits under the Wrongful Death Act.

For these reasons, I separately concur with the result reached by the Court in this case.

PASHMAN and- HANDLER, JJ., concurring in the result.

For affirmance in part and reversal in part — Chief Justice WILENTZ and Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O’HERN — 7.

Opposed —None.

Also implicated in this case is the doctrine of laches, an equitable defense often associated with estoppel. See Kazin v. Kazin, 81 N.J. 85, 94 (1979); Untermann v. Untermann, 43 N.J.Super. 106, 109 (App.Div.), certif. den., 23 N.J. 363 (1957). See generally Dobbs, The Law of Remedies, § 2.4 at 45 et seq. (1975). The laches doctrine comes into play where there is an unexplained and inexcusable delay in enforcing a known right. See generally Flammia v. Maller, 66 N.J.Super. 440 (App.Div.1961). In this case it cannot be said that Steven engaged in inexcusable delaying tactics because his rights to these wrongful death benefits did not accrue until after his father’s death. Nevertheless, he attacks the validity of a divorce decree issued almost twenty years ago, raising questions about the staleness of that claim. Moreover, he did not raise this issue at the earliest possible opportunity, having failed to question the prior divorce when his father’s estate was settled intestate. Laches involves more than mere delay or lapse of time. See Hyland v. Simmone, 152 N.J.Super. 569 (Ch.Div.1977), affd, 163 N.J.Super. 137 (App.Div.1978); Finley v. U. S., 130 F.Supp. 788 (D.C.N.J.1955). A laches question involves a weighing of equitable considerations. See Weber v. Pieretti, 72 *556 N.J.Super. 184 (Ch.Div.1962), aff'd, 77 N.J.Super. 423 (App.Div.1962); Pierce v. International Tel. & Tel. Corp., 147 F.Supp. 934 (D.C.N.J.1957). Therefore, while laches does not dispose of this case, many of the equitable considerations which go into the establishment of a laches defense are present in this instance. Cf. O’Keeffe v. Snyder, 83 N.J. 478, 507 (1980) (Handler, J., dissenting) (court should weigh equities in determining whether certain paintings stolen thirty years earlier should be returned to their original owner); Bridgeton Ed. Assoc. v. Bd. of Ed. Bridgeton, 132 N.J.Super. 554 (Ch.Div.1975) (although laches not strictly applicable, plaintiffs’ remedies limited because of their failure to file complaint with “reasonable promptness”).