[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 533 Petitioner sued for annulment of his ceremonial marriage to defendant performed in this State on May 22, 1943, *Page 534 on the ground of the latter's prior subsisting marriage to one Charles William Chadwick, Jr. Defendant answered denying the marriage was bigamous and counterclaimed for support for herself and a child of the union.
The decree dismissed the petition and awarded separate maintenance to defendant and the child at the rate of $12. and $10. per week, respectively. The appeal is from the provisions of the decree dismissing the petition for annulment and awarding support to defendant. The allowance to the child is not challenged.
The prior marriage was admitted, but the contention is that it was dissolved by a decree of divorce rendered by the Court of First Instance for the Judicial District of Hidalgo, State of Tlaxcala, in the Republic of Mexico. Petitioner challenges this decree as utterly void for want of jurisdiction. It was entered July 27, 1942 in a suit instituted in the name of Chadwick, and purports to dissolve the marriage because of his defendant wife's abandonment of "the matrimonial home without any justified cause since more than six months ago," and of "notorious incompatibility of temperament between husband and wife," all proved "with the defendant's confession which according to" the Mexican Code of Civil Procedure "is ample evidence." The decree came "by mail." Neither party had a residence in Mexico; there is no pretense of a residence there by either. Neither journeyed to Mexico. They were represented in the proceedings by the resident Mexican attorneys in fact, holding their several powers of attorney. The decree recites that the defendant's attorney submitted himself and "his grantor to the jurisdiction and competence of the court" and "confessed" the complaint "in all its particulars and expressed his agreement to the same;" and it declares that the plaintiff "proved his action," and that his defendant wife "confessed the complaint through her attorney in fact," naming him.
The validity of the decree was not put in issue by the pleadings. Ordinarily, it is requisite that the foreign divorce be pleaded and its validity made an issue by the pleadings.Fairchild v. Fairchild, 53 N.J. Eq. 678 (E. A. 1895);Magowan v. Magowan, 57 N.J. Eq. 322 (E. A. 1898); Colev. *Page 535 Cole, 96 N.J. Eq. 206 (Ch. 1924); Feickert v. Feickert,98 N.J. Eq. 444 (Ch. 1925-1926). If a decree of divorce of a foreign country embodies all the jurisdictional prerequisites and is otherwise sufficient on its face, there is a presumption in favor of its validity under the laws of the sovereignty in which it was rendered, but extraterritorial recognition rests on the ancient doctrine of comity controlled by the public policy of the state whose recognition is invoked. The Full Faith and Credit Clause of the Federal Constitution (Article IV section 1) has no application. The grounds of collateral attack, such as want of jurisdiction, are issues to be raised by the pleadings and made the subject of proof in accordance with the normal course of judicial procedure. But here the question of the validity of the foreign divorce was tried and determined as if the issue had been framed by the pleadings; and since the nullity of the decree is revealed by the instrument itself, and the evidence is confirmatory of the jurisdictional deficiency, we have concluded to consider the point as if issue had been joined thereon in the pleadings.
The decree is utterly void for want of jurisdiction of the subject matter. The basis of jurisdiction to dissolve the matrimonial status is domicile. Williams v. North Carolina,317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Williams v.North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1944); Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087,1097, 92 L.Ed. 1429 (1948); Bell v. Bell, 181 U.S. 175,21 S.Ct. 551, 45 L.Ed. 804 (1900); Hollander v.Hollander, 137 N.J. Eq. 70 (E. A. 1945). The dissolution of a marriage is governed by the lex domicilii. Here, the matrimonial domicile was not in Mexico; neither party was domiciled there. Each was domiciled in New Jersey and resident here at and prior to the time of the decree. Indeed, there is no adjudication of domicile or residence of either in Mexico. The decree plainly does not proceed upon the hypothesis of domicile or residence as a jurisdictional prerequisite. And it purports to dissolve the marriage bond for a cause not recognized by the laws of New Jersey. It is provided by statute that if an inhabitant of this State shall go into another state or country in order to obtain a divorce *Page 536 "for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state," a decree so obtained shall be of no force or effect in this state. R.S. 2:50-35.
But petitioner had good reason to know that the decree of divorce was at least of questionable validity. Indeed, it seems reasonably clear that he had no abiding confidence in the legal integrity of the instrument. Inquiry would have disclosed that the decree was void; and it is but fair to presume that he refrained from inquiry because of the fear of unwelcome information. Be this as it may, the duty of inquiry was his.Watkinson v. Watkinson, 67 N.J. Eq. 142 (Ch. 1904). It is almost a matter of common knowledge that the prevalent "mail order" Mexican divorce is a nullity. Petitioner was a junior executive of a large public utility corporation, not untutored and inexperienced. He did not dwell in an ivory tower wholly oblivious to the implications of such mundane procedures and practices. It was not open to him to invoke the general jurisdiction of equity for a decree of nullity. He was not himself innocent of wrongdoing. Rooney v. Rooney, 54 N.J. Eq. 231 (Ch. 1896); Kelley v. Kelley, 161 Mass. 111,36 N.E. 837, 25 A.L.R. 800 (1894). And in the exercise of the statutory jurisdiction (R.S. 2:60-1, et seq.), he is precluded from relief by the operation of the maxim that "unclean hands" will bar the remedy of annulment. The burden was upon him to prove his innocence "of any intentional violation of the law" by a preponderance of the evidence; and he failed to sustain it. This principle was established by the old Court of Errors and Appeals in Tyll v. Keller, 94 N.J. Eq. 426 (E. A. 1922); and it was lately reaffirmed by this court in Smith v.Hrzich, 1 N.J. 1, 61 Atl. (2d) 497 (1948). See, also,Hollingshead v. Hollingshead, 91 N.J. Eq. 261 (Ch. 1919-1920).
It is a corollary of the foregoing that defendant is not entitled to alimony. The jurisdiction to award alimony is purely statutory; and the obligation is predicated upon a lawful marriage. R.S. 2:50-37; 2:50-39. The burden was on the counterclaimant to prove the marriage relationship; and in this, of course, she failed. Vide Field v. Field, 103 N.J. Eq. 174 *Page 537 (Ch. 1928); Profenius v. Profenius, 90 N.J. Eq. 45 (Ch. 1918-1919).
In New York, the obligation of support has been enforced in certain cases by means of a quasi estoppel, notwithstanding that the marriage was a nullity. Krause v. Krause, 282 N.Y. 355,26 N.E. (2d) 290 (1940). See, also, Rooney v.Rooney, supra. But this doctrine is not applied where the bigamous marriage was founded upon a Mexican divorce such as we have here. Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.(2d) 60 (1948). As in that case, there was not even the slightest semblance or color of jurisdiction in the Mexican court to dissolve the marriage here under review. The attempt to confer jurisdiction upon the foreign court by the powers of attorney was wholly ineffectual. It was the result of a collusive compact to procure a foreign divorce contrary to the policy of our own statute, by parties whose domicile and residence remained in New Jersey. There was no lawful submission to the jurisdiction of the Mexican forum. That court did not have cognizance of either the subject matter or the parties. The marriage here did not give rise to the obligation of support, either under the statute or by the operation of a quasi estoppel. Defendant was aware of the vital infirmity in the foreign decree, and so equally at fault. To apply the principle of estoppel in such circumstances would be to place in the hands of the parties the opportunity and the means of frustrating the policy of our own statute which puts the dissolution of the marriage status beyond the control of the parties; and this would be inadmissible. Hollingshead v.Hollingshead, supra.
Where, as here, the parties are in pari delicto, the law leaves them where it finds them, according to the maxim in paridelicto petior est conditio defendentis.
The allowance to counsel is not excessive.
The decree is reversed as respects the award of alimony to respondent on the counterclaim, but affirmed otherwise.