Summary
In Newton v. Newton (May 22, 1935) 179 A. 621, 13 N.J. Misc 613, a Mexican decree of divorce was obtained by the husband, whose sole purpose in going to Mexico, where he remained for less than a week, was to obtain a divorce.
Summary of this case from Golden v. GoldenOpinion
05-22-1935
NEWTON v. NEWTON.
Le Roy W. Loder, of Bridgeton, for petitioner. Francis A. Stanger, Jr., and Frederick B. Edwards, both of Bridgeton, for defendant.
Suit by Elva O. Newton against John J. Newton for divorce, annulment, and maintenance for petitioner and her two minor children.
Decree advised for petitioner in accordance with opinion.
Le Roy W. Loder, of Bridgeton, for petitioner.
Francis A. Stanger, Jr., and Frederick B. Edwards, both of Bridgeton, for defendant.
KRAFT, Advisory Master.
The petitioner alleges in her petition that the defendant procured a divorce from her in the civil branch first instance judicial district of Nogales, Sonora, Mexico, which is a nullity, and which she prays may be annulled and for nothing holden; that on April 19, 1930, the defendant went through a pretended marriage ceremony with one Maud D. Filer, since which time the said Maud D. Filer and the defendant have lived together continuously as husband and wife at Bridgeton, N. J.; that the defendant has been guilty of adultery with said Maud D. Filer since April 19, 1930, down to the present time, and the petitioner prays a decree of divorce for said adultery; and that the defendant may be decreed to provide support for herself and her two minor children. The defendant filed an answer in this cause as a defense to the petitioner's prayer for relief, the validity of the Mexican divorce.
The uncontradicted testimony on the part of the petitioner shows that she and the defendant were married on April 10, 1918, and that she and the defendant immediately went to live in Bridgeton, N. J., where they lived together in the same house continuously from the time of their said marriage until March 23, 1929, when the defendant left their home, and that he has lived at other places in Bridgetonaforesaid continuously from that time down to the present time; that the petitioner and defendant had two children born to them, namely, John J. Newton, Jr., born January 31, 1920, and Thomas Martin Newton, born July 18, 1922, both of whom have lived with the petitioner since the defendant left their home on March 23, 1929; that the defendant has been in the continuous employ of the Martin Dyeing & Finishing Company at Bridgeton (in which company he is also a stockholder) for the past eighteen years, at present receiving a salary of $6,500 per year besides a bonus.
The petitioner testified that some time in January, 1929, the defendant told their children that he was going away on a business trip, and that he remained away for eleven days; that on February 17, 1929, a paper was served upon her by the sheriff of Cumberland county, and that she could not read the paper because it was in a foreign language; that about a half hour after the paper had been served the defendant called her on the telephone and asked her whether a paper had been served upon her and she said, "Yes, Jack, what is the meaning of this?" Defendant said, "I am coming over shortly and will talk it over with you." She also testified when the defendant came home he told her he had been to Mexico and wanted a divorce, and had started it in Mexico; that she told him she felt terrible and he said, "Well, that was his final decision and was definite." She further testified that this was the first time sne knew what he had done while he was away from the home for eleven days; that she had never been to Mexico in her life, and she and her husband had never been domiciled there; that she entered no appearance in said Mexican divorce suit, nor did she employ or authorize any lawyer or any one else to enter any appearance for her in said suit.
Counsel for the defendant stated that at no time has the defendant ever represented himself to be a citizen of Mexico, and that the defendant on April 19, 1930, went through a ceremonial marriage with one Maud D. Filer at Hartford, Conn., ever since which time the defendant and said Maud. D. Filer have lived together continuously as husband and wife at Bridgeton, aforesaid.
The defendant and his counsel were present and were in conference throughout the final hearing in this cause, yet the defendant did not take the stand to give any testimony. At the conclusion of the taking of the testimony on the part of the petitioner, counsel for the defendant stated that no testimony was to be offered on the part of the defendant, he stating, "We rest. We believe that the testimony that is now in the case is sufficient to be considered by the court."
By consent of counsel, a certified copy of the Mexican decree of divorce (written in the Spanish language), and a translation thereof into the English language, were put in evidence, which decree, among other things, recites:
"Upon the papers and proceedings of the action for divorce by John J. Newton against his wife, Elva Otto Newton, both American citizens and domiciled in the City of Bridgeton, State of New Jersey, United States of America." (Italics mine.)
There was attached to said certified copy of said decree of divorce the certificate of the Consul of the United States of the United States of America at Nogales, Sonora, Mexico, that the person who certified said copy of said decree was, at the time of the signing thereof, the secretary of the civil branch of the court of first instance of the judicial district of Nogales, Sonora, Mexico, and said certificate also recited the summary of a decision of the Supreme Court of Mexico, as follows:
"The authority competent to try a divorce case is the Judge having jurisdiction where the husband and wife are domiciled; and according to Art. 27 of the Civil Code of the Federal District, in order to acquire domicile it is not sufficient to live at a certain place but necessary that the residence be habitual." * * * No. 2336, 1929, Second Section. (Italics mine.)
I find from the testimony, answer, and final decree that neither the petitioner nor the defendant were ever residents of or domiciled in Mexico, but that they were domiciled in Bridgeton, N. J., when said application for said Mexican divorce was made, and have been so domiciled continuously for the past eighteen years. I also find that the defendant's purpose in going to Mexico, where he remained less than one week, was for the sole and express purpose of obtaining a divorce, and that he never intended to become a citizen of Mexico or domicile at any state therein. Under the authority of Reik v. Reik, 109 N. J. Eq. 615, 158 A. 519, affirmed 112 N. J. Eq. 234, 163 A. 907, and the facts in thiscause, the divorce granted by the Mexican court must be declared invalid in this state, and I will advise a decree annulling and setting aside said decree. I will also advise a decree of divorce to the plaintiff on the grounds of adultery as alleged in her petition, and I award the custody of the said two children to the petitioner.
The Mexican decree ordered that the defendant pay to the petitioner the sum of $150 monthly for the support and education of said two children, and he has been voluntarily paying $42 per week for such purpose. In view of the facts and financial circumstances to the parties to the suit, I will also advise a decree that the defendant pay to the petitioner the sum of $50 weekly for the support and maintenance of the petitioner and her said two children, and that he pay to the solicitor of the petitioner a counsel fee of $200, which shall include all expenses of the petitioner, except the taxed costs of this suit which shall also be paid by the defendant.