(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 22, 1997 -- Decided January 8, 1998
Coleman, J., writing for a unanimous Court.
The issue in this appeal is whether in divorce proceedings, a spouse who was aware of a previous
divorce of the other spouse can use the invalidity of that divorce judgment to obtain an annulment of their
marriage and keep the other spouse from pursuing claims for alimony and equitable distribution of marital
property.
Plaintiff, Patricia Heuer (Patricia), and defendant, Gilbert Heuer (Gilbert), were married in 1984,
the third marriage for each. According to Patricia, she had told Gilbert about her first marriage before they
started dating and had told him she had gone to Alabama for her first divorce. Gilbert maintained he did not
learn about the first marriage and divorce until he and Patricia had been married for three years. The
invalidity of the Alabama divorce is at the heart of the proceedings Gilbert later began to avoid the equitable
distribution of the parties' property and the payment of alimony after Patricia filed for divorce in 1995.
Patricia married her first husband, Kenneth McDougall (Kenneth), in 1964 and they lived in New
Jersey until 1968, when they decided to get a divorce. This was before New Jersey enacted its no-fault
divorce law and the two believed a New Jersey divorce would be expensive, difficult, and time-consuming.
Because Kenneth was in a hurry to remarry, Patricia obtained paperwork from an Alabama attorney,
traveled to Alabama at the attorney's request, stayed there for the thirty-six hours the lawyer told her was
necessary to establish residency for the divorce, and, after testifying before a judge, received a document
called a “Divorce Decree.”
As it turned out, the “Divorce Decree” was not valid, but apparently was one of a number of
fraudulent divorces the Alabama judge who signed the decree later was indicted for his part in. There was no
evidence that Patricia participated in the fraud. Alabama has no record of Patricia's divorce. Unaware the
divorce was invalid, Kenneth remarried and Patricia married her second husband in 1970, providing a copy of
the Alabama decree as proof that her first marriage was legally terminated.
Patricia's second marriage lasted twelve years, ending by divorce in New Jersey in 1982. Patricia and
her second husband had one child, a daughter. The girl was adopted by Gilbert in 1993, after he and Patricia
had been married for nine years.
Patricia filed a complaint against Gilbert in 1995, seeking a divorce, alimony, and equitable
distribution. She later filed amended complaints to assert the commission of a marital tort and to seek other
relief. Gilbert filed an answer and counterclaim, seeking to have the marriage annulled because of the
invalidity of Patricia's first divorce. Gilbert filed a motion for summary judgment, which the motion judge
granted. The court found, for purposes of the motion, that Gilbert had known about the Alabama divorce
before he married Patricia, but because Gilbert had played no part in Patricia's procuring of the Alabama
divorce, refused to find Gilbert barred by the equitable principle of estoppel from attacking the first divorce.
The court annulled Gilbert and Patricia's marriage and dismissed Patricia's claims for alimony and
equitable distribution.
Patricia filed a motion for leave to appeal to the Appellate Division, which denied the motion. The
Supreme Court then granted leave to appeal.
HELD: Although the Alabama divorce was invalid, because plaintiff played no part in the fraud that led to
the divorce and because defendant, with knowledge of the divorce, married plaintiff, adopted her daughter,
and lived with plaintiff as husband and wife for a number of years, the equitable principle of quasi-estoppel
bars defendant from attacking the validity of the Alabama divorce to obtain an annulment of the marriage
and avoid equitable distribution and the payment of alimony.
1. Patricia's Alabama divorce was invalid because there is no record of the divorce in Alabama, the
“decree” apparently having been fraudulently issued by the Alabama judge without Patricia's knowing
participation in the fraud, and because under New Jersey's law at the time, the Alabama judgment would
not have to be recognized by New Jersey courts. With the enactment of New Jersey's no-fault divorce law in
1971 and the passage of twenty-six years , the law in this area has become more liberal, a circumstance the
Court acknowledges in its decision in this case. (pp.7-10)
2. The invalidity of the Alabama divorce is not the sole factor in determining whether Gilbert is entitled to
an annulment of the marriage. As with the resolution of claims for alimony and equitable distribution, the
determination of the legal effect of a successful challenge to an ancient divorce should be based on equitable
principles that focus on the actual conduct of the parties. The doctrine of equitable estoppel, specifically
”quasi-estoppel,” which bars a person from taking a position inconsistent with prior conduct if another would
be hurt thereby, is applicable here. (pp. 11-17)
3. The doctrine of unclean hands is also relevant to the issues in this case and the record contains no basis
on which to say Patricia should be barred by unclean hands from seeking redress from the courts. She sought
an Alabama divorce in good faith and in the same spirit married Gilbert and permitted him to adopt her
daughter. (pp. 17-18)
4. Gilbert's attack on Patricia's first divorce is motivated solely by a desire to injure her financially by
depriving her of alimony and of the right to an equitable distribution of the marital property. This attack on
the divorce is inconsistent with his marriage to Patricia, his living with her as husband and wife, and his
adoption of her daughter. For at least seven years after learning of the Alabama divorce, Gilbert neither took
action himself regarding the 1968 divorce nor suggested that Patricia do so. Only after Patricia filed her
divorce complaint in 1995 did Gilbert raise the issue of the validity of the prior divorce. (pp.19-22)
5. The factors to examine when determining whether quasi-estoppel has been satisfied are: (1) the duration
of the marriage, (2) the conduct of the parties that indicates they held themselves out as husband and wife,
and (3) the good faith of the party who obtained the first divorce. This approach is similar to that taken in
other jurisdictions. It is intended to help preserve family relations. A contrary result could invalidate
Patricia's second marriage, during which her daughter was born, and similarly affect the remarriage of her
first husband, who now also has children. (pp.22-24)
The judgment of the Chancery Division is REVERSED. The dismissed portion of the complaint as
amended is reinstated, and the matter is remanded to the Chancery Division for disposition on the merits of
the claims for divorce, equitable distribution, alimony, and the marital torts.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
31 September Term 1997
PATRICIA A. HEUER,
Plaintiff-Appellant,
v.
GILBERT J. HEUER,
Defendant-Respondent.
Argued September 22, 1997 -- Decided January 8, 1998
On appeal from the Superior Court, Chancery
Division.
Dale E. Console argued the cause for
appellant (Ulrichsen, Amarel & Eory,
attorneys).
James P. Yudes argued the cause for
respondent (Mr. Yudes, attorney; Kevin M.
Mazza, on the brief).
The opinion of the Court was delivered by
COLEMAN, J.
The core question raised in this appeal is what legal effect
a successful attack on the validity of an ancient foreign divorce
or putative divorce should have on claims after remarriage for
alimony and/or equitable distribution when the party procuring
the putative foreign decree did not knowingly commit any wrongful
conduct. The trial court held that (1) defendant was not
estopped from attacking the validity of plaintiff's prior
divorce, (2) defendant was entitled to a judgment annulling his
marriage with plaintiff, and (3) plaintiff's claims for alimony
and equitable distribution must be dismissed.
We hold that under the totality of the circumstances,
defendant is estopped from denying the validity of his marriage
to plaintiff. Plaintiff is entitled to pursue her claims for
alimony, equitable distribution, and marital torts.
Because the case was disposed of in the trial court by an
order granting partial summary judgment in favor of defendant,
our statement of the facts is based on our consideration of the
competent evidential materials presented in the light most
favorable to plaintiff who opposed defendant's motion for summary
judgment. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520,
523-24 (1995).
Patricia (plaintiff) and Gilbert (defendant) Heuer were
married in New Jersey in October 1984. It was the third marriage
for each of them. In March 1995, plaintiff initiated these
divorce proceedings in which the validity of plaintiff's first
divorce became an issue.
Plaintiff and Kenneth McDougall were married on April 25,
1964 in Dover, New Jersey. They lived in Morris Plains, New
Jersey until 1968 when they decided to seek a divorce. According
to plaintiff, they decided to obtain a divorce in Alabama because
they believed divorces to be lengthy, difficult, and costly in
New Jersey and McDougall wanted to remarry quickly. In her
deposition and supplemental interrogatories, plaintiff stated
that an Alabama attorney sent forms that plaintiff and McDougall
completed and had notarized at a Morristown bank. Plaintiff does
not remember the name of the Alabama attorney, but she traveled
to Alabama at the attorney's request. McDougall did not go with
her. Plaintiff remained in Alabama for approximately thirty-six
hours to fulfill the residency requirement she believed, based on
the advice of counsel, was required to obtain a divorce in
Alabama. During her stay, plaintiff went to court and testified
before a judge.
Plaintiff received a document called a “Divorce Decree”
dated December 19, 1968. The document states that Patricia A.
McDougall and Kenneth D. McDougall were divorced by the St. Clair
County Alabama Circuit Court, and the decree was signed by Judge
F.O. Whitten, Jr. McDougall signed a receipt acknowledging
receipt of the judgment of divorce, and he subsequently
remarried without knowledge that the judge had issued a
fraudulent decree.
On May 16, 1970, plaintiff married Robert Williams in
Madison, New Jersey. On the marriage license, plaintiff
indicated that she had been married and divorced once before and
that Kenneth McDougall was the name of her former husband.
McDougall is listed as plaintiff's surname by a prior marriage on
the record of her marriage to Williams from the State Registrar
of Vital Statistics. Plaintiff testified at her depositions that
she was required to produce the divorce decree from her first
marriage before the license for her second marriage could be
issued. During her marriage to Williams, plaintiff gave birth to
a daughter. In 1982, plaintiff and Williams obtained a Judgment
of Divorce from the Superior Court, Chancery Division, of Morris
County.
Plaintiff and defendant were married in 1984. Their
application for a marriage license indicates that plaintiff was
married once before and lists her former husband as Robert
Williams. The parties differ regarding whether, at the time of
their marriage, defendant knew about plaintiff's marriage to
McDougall. The trial court, however, was obligated to view that
dispute in the light most favorable to plaintiff when considering
defendant's motion for summary judgment. Plaintiff told
defendant about her first marriage prior to dating him and she
specifically remembers telling him that she went to Alabama to
get her first divorce. Plaintiff also said that she and
defendant discussed omitting the fact of her first marriage from
the application because she was embarrassed about being twice
divorced and her first marriage evoked painful memories. She
stated that defendant did not have a problem with the omission.
Defendant denies that these conversations took place.
Plaintiff's mother also said that she spoke with defendant about
plaintiff's first marriage before they were married. Defendant
denies that conversation occurred as well.
Defendant stated that the first time he became aware of
plaintiff's first marriage and divorce was when he met McDougall
at plaintiff's uncle's funeral in 1987, three years after
plaintiff and defendant were married. Defendant claims that
plaintiff informed him at that time of her marriage to McDougall,
but that he did not inquire into the details of the first divorce
because plaintiff told him it brought back painful memories. He
did not seek to annul his marriage to plaintiff at that time.
For purposes of the summary judgment motion, the trial court
concluded that defendant knew about plaintiff's first marriage
when he and plaintiff were married.
In March 1995, plaintiff filed a complaint seeking a
divorce, alimony, and equitable distribution. She also filed two
amended complaints in which she seeks, among other things,
damages for an alleged marital tort. Defendant filed an Answer
and Counterclaim, seeking an annulment on the grounds that
plaintiff's first divorce was invalid. Defendant moved for
summary judgment in June 1996. Although the trial court found
that, for purposes of the motion, defendant knew about the
Alabama divorce prior to marrying plaintiff, it granted the
motion and annulled the marriage. The court refused to apply
estoppel because defendant did not participate in the Alabama
divorce proceedings.
The Appellate Division denied plaintiff's motion for leave
to appeal the trial court's order. We granted plaintiff's motion
for leave to appeal,
148 N.J. 456 (1997), and now reverse.
The historical context in which plaintiff sought the Alabama divorce is important. She sought a foreign divorce in 1968, which was approximately three years before the New Jersey Legislature enacted our no-fault divorce law, the Divorce Reform Act of 1971, L. 1971, c. 212, § 2. Our Divorce Act prior to the 1971 amendments restricted the dissolution of marriage to three postnuptial causes: adultery, willful desertion for at least two years, and extreme cruelty. N.J.S.A. 2A:34-2 to -3, since amended, L. 1971, c. 212, § 2, § 3; L. 1971, c. 217, § 11. The Divorce Reform Act of 1971 reduced the required time for desertion to one year, modified the nature of the proofs required, and added five additional grounds: eighteen months separation, voluntary habitual abuse of alcohol or any narcotic drug, twenty-four or more consecutive months of institutionalization for mental illness, imprisonment for eighteen or more consecutive months, and “[d]eviant sexual
conduct voluntarily performed by the defendant without the
consent of the plaintiff.” N.J.S.A. 2A:34-2.
Plaintiff's statement that she sought an Alabama divorce
because it was too difficult to readily obtain one in New Jersey
is reflective of the strict legislative policy at the time. The
policy was so strict that the Legislature directed that if an
inhabitant of this State obtained a divorce or an annulment in
another state or country based on a cause that occurred in New
Jersey, or for a cause that was not cognizable in New Jersey,
such a judgment would be accorded no force or effect in this
State. L. 1948, c. 320, § 23, p. 1290-91; repealed by L. 1971,
c. 212, § 9. That strict policy was implemented through our
decisions. Tonti v. Chadwick,
1 N.J. 531, 535-36 (1949);
Warrender v. Warrender,
79 N.J. Super. 114, 118 (App. Div. 1963),
aff'd,
42 N.J. 287 (1964); State v. Najjar,
1 N.J. Super. 208,
212-14 (App. Div.), aff'd,
2 N.J. 208 (1949). Thus, the type of
foreign divorce that plaintiff thought she obtained prior to 1971
was deemed offensive to our public policy and statute at that
time. Full faith and credit need not be accorded a judgment of
another jurisdiction when the court issuing the judgment lacked
the jurisdictional prerequisite of domicile. Staedler v.
Staedler,
6 N.J. 380, 391-92 (1951); Peff v. Peff,
2 N.J. 513,
521-22 (1949). Furthermore, only a putative judgment was
obtained in Alabama. Restatement (Second) of Conflict of Laws §§
102, 110 (1971).
Notwithstanding the legislative policy that predated the
Divorce Reform Act of 1971, it would be “an overstatement to
imply that courts even under prior laws were insensitive to
equitable concerns or did not, within the constraints of the
matrimonial statutes, conscientiously undertake to balance the
equities as between parties.” Kazin v. Kazin,
81 N.J. 85, 91
(1979). Although the Divorce Reform Act of 1971 has virtually
eliminated the need for residents of New Jersey to seek foreign
divorces, those amendments have not addressed the human and legal
problems that would result if those ancient foreign divorces are
found to be invalid many years later. Consequently, our decision
in this case is informed by the liberalization of our laws
governing the dissolution of marriage and equitable principles
that have moved to the forefront in the last twenty-six years.
In the present case, it is virtually undisputed that plaintiff's first divorce was invalid independent of the domiciliary question. The Alabama judge who signed the divorce decree was later indicted for granting fraudulent divorces.See footnote 1 Furthermore, defendant produced a record of a search for the years 1960 through 1969 by the Alabama Department of Public
Health, Center for Health Statistics, Office of Vital Records,
which uncovered no record of divorce for Kenneth and Patricia
McDougall. For those reasons, even if plaintiff had been
properly domiciled in Alabama, the decree would be invalid.
Indeed, plaintiff concedes, based on the scandals concerning
divorces at the time she procured her divorce, she may have been
the victim of fraud. She denies, however, that she knowingly
participated in a fraud. Assuming the trial court is correct in
holding that the Alabama divorce was fraudulently issued, or that
our now repealed nullifying statute was applicable to plaintiff's
purported 1968 Alabama divorce, the real question is whether
defendant should be estopped from denying the validity of his
marriage to plaintiff.
Defendant argues that because there is no colorable divorce
decree to challenge, plaintiff's estoppel argument must fail.
Defendant maintains that estoppel does not apply because the
cases that have applied estoppel were predicated on the fact that
the estopped spouse either participated in obtaining the out-of-state divorce, or at least knew there was a prior divorce.
Plaintiff contends that although defendant had knowledge of her
prior divorces when they were married, such knowledge should not
be a prerequisite to the application of estoppel. We agree with
plaintiff.
Defendant's arguments implicate both the law of divorces and
of annulments. We have recognized that
irrespective of the factual context in which
the issue may arise, the last of two or more
marriages is presumptively valid. The
presumption of validity may be overcome only
by clear and convincing evidence that (1)
there was a prior marriage, (2) the prior
marriage was valid, and (3) the prior
marriage was not terminated by death or
divorce before the latest marriage.
[Newburgh v. Arrigo,
88 N.J. 529, 538
(1982).]
Defendant argues that his proofs clearly and convincingly
demonstrate that the presumption of validity that attached to his
marriage to plaintiff has been rebutted. Although we agree that
defendant's evidence is sufficient to rebut the presumption of
validity, that conclusion is not dispositive of whether he is
entitled to a judgment of nullity.
Newburgh expressly recognized that the presumption of
validity of a prior marriage and the doctrine of estoppel stem
from a common source. As we said in Newburgh:
The related presumption in favor of the
validity of prior divorces is akin to
estoppel to deny the validity of a prior
divorce. Kazin v. Kazin, supra, 81 N.J. at
96. Both principles recognize the reality of
the increasing rate of divorce and
remarriage. The law no longer insists on
confining people in the grave of a dead
marriage. Id. at 98. Modern matrimonial law
has relaxed the requirement for divorce and
granted greater freedom to individuals in the
pursuit of marital happiness.
[Newburgh, supra, 88 N.J. at 538.]
Justice Handler's concurring opinion in Newburgh expanded on
that notion when he observed that “[f]airness and equity may
demand that, after the passage of so many years and the absence
of any showing of knowingly wrongful conduct on the procuring
party's part, such long-settled matters should now be beyond
attack.” Newburgh, supra, 88 N.J. at 550-51 (Handler, J.,
concurring). Principles of equity must be applied in light of
the totality of the circumstances.
Annulment of marriages in this State is prescribed by the
Legislature. The controlling statute, N.J.S.A. 2A:34-1, provides
that marriages may be annulled when “[e]ither of the parties has
another wife or husband living at the time of a second or other
marriage.” N.J.S.A. 2A:34-1a. Here, too, plaintiff relies on
estoppel to preclude a judgment for annulment.
The social and legal problems caused by the so-called
“quickie” foreign divorces are not new. Nearly half a century
ago, this Court in Tonti held that although a wife's Mexican
divorce from a previous spouse was void, the later husband was
not entitled to challenge that divorce because he had known of
the circumstances under which the divorce was procured. Tonti,
supra, 1 N.J. at 536. Nevertheless, the Court denied the wife's
claim for alimony and support because she failed to prove the
validity of her present marriage. The results in that case were
driven by legislative nullification of such extraterritorial
divorces. After the Divorce Reform Act of 1971 was adopted, this
Court rejected the underpinning for Tonti in Kazin, supra, 81
N.J. at 92. The decision in Kazin was substantially influenced
by the fact that by that time the Legislature had essentially
overruled Tonti because "[t]he previous statute negating foreign
divorces based on jurisdictional and substantive grounds
inconsistent with our own . . . [had been] repealed." Ibid.
The issue in Kazin was whether the plaintiff-wife, who had
obtained an invalid Mexican divorce from her first husband, would
be permitted to maintain an action against her second husband for
divorce and alimony. Because the husband in Kazin was aware of
the wife's prior marriage before they were married, and because
he had participated in a meeting with the wife and her first
husband and had traveled with the plaintiff as far as Texas on
her way to Mexico to obtain the divorce, the Court held that he
was estopped from denying the validity of their marriage. Id. at
98-99.
Although the presumption of validity and estoppel are closely related, we decline to apply the presumption of validity standard in this case. Based on the special facts in this case, that approach does not adequately address the consequences of a successful, belated attack on an ancient foreign divorce decree such as the putative decree involved here. Since that putative decree was issued, there have been two marriages and the birth of at least one child. Plaintiff is entitled to a presumption that
she would not willingly commit bigamy, a violation of N.J.S.A.
2A:92-1, repealed and replaced by N.J.S.A. 2C:24-1, or
illegitimatize her children, Sparks v. Ross,
72 N.J. Eq. 762, 765
(Ch. Div. 1907), aff'd,
75 N.J. Eq. 550, 552 (E & A 1909). In a
case such as this, claims for alimony and equitable distribution
must of necessity be decided based on the facts and principles of
equity. The standard for determining the legal effect of a
successful attack on an ancient divorce should also be resolved
by application of equitable principles that focus on the actual
conduct of the parties. We believe that approach is conducive
toward reaching the fair, sound, and correct disposition.
Consequently, we adopt the equitable doctrine of estoppel to
determine the legal effect of a successful attack on an ancient
divorce. In all other respects, we reaffirm Newburgh.
Equitable estoppel has been defined as
. . .'the effect of the voluntary conduct of
a party whereby he is absolutely precluded,
both at law and in equity, from asserting
rights which might perhaps have otherwise
existed . . . as against another person, who
has in good faith relied upon such conduct,
and has been led thereby to change his
position for the worse . . . .'
[Highway Trailer Co. v. Donna Motor Lines,
Inc.,
46 N.J. 442, 449, cert. denied sub
nom., Mount Vernon Fire Ins. Co. v. Highway
Trailer Co.,
385 U.S. 834,
87 S. Ct. 77,
17 L. Ed.2d 68 (1966) (quoting 3 Pomeroy's
Equity Jurisprudence § 804 (5th ed. 1941)).]
The doctrine is “designed to prevent a party's disavowal of
previous conduct if such repudiation 'would not be responsive to
the demands of justice and good conscience'.” Carlsen v.
Masters, Mates & Pilots Pension Plan Trust,
80 N.J. 334, 339
(1979) (quoting West Jersey Title, etc. Co. v. Industrial Trust
Co.,
27 N.J. 144, 153 (1958)).
There are two basic forms of estoppel. “True estoppel” is
used to define the situation in which “'one party induces another
to rely to his [or her] damage upon certain representations.'”
Kazin, supra, 81 N.J. at 94 (quoting Restatement (Second) of
Conflict of Laws § 74, cmt. b (1971)). “Quasi-estoppel”
describes a situation in which “an individual is not permitted to
'blow both hot and cold,' taking a position inconsistent with
prior conduct, if this would injure another, regardless of
whether that person has actually relied thereon.” Ibid.
(quoting Brown v. Brown,
82 Cal. Rptr. 238, 244-45 (Ct. App.
1969)).
The Restatement (Second) of Conflict of Laws § 74 (1971),
relied on by this Court in Kazin, is helpful in deciding when to
invoke the doctrine. It provides: "A person may be precluded
from attacking the validity of a foreign divorce decree if, under
the circumstances, it would be inequitable for him to do so."
One of the comments to that rule explains that "[s]uch inequity
may exist when action has been taken in reliance on the divorce
or expectations are based on it or when the attack on the divorce
is inconsistent with the earlier conduct of the attacking party."
Id. at cmt. b. Thus, the Restatement embraces both “true
estoppel” and “quasi-estoppel.”
“Estoppel may arise by silence or omission where one is
under a duty to speak or act.” Carlsen, supra, 80 N.J. at 341.
The party seeking to invoke the doctrine has the burden of
proving that the other party should be estopped. Newburgh,
supra, 88 N.J. at 541; Lawes v. Lynch,
7 N.J. Super. 584, 593
(Ch. Div.), aff'd,
6 N.J. 1 (1950).
In the field of matrimonial jurisprudence, the doctrine of
unclean hands may be considered simultaneously with estoppel to
help ensure justice and to protect the integrity of the courts.
Untermann v. Untermann,
19 N.J. 507, 517 (1955). The equitable
maxim “[a party] who comes into equity must be with clean hands”
has limitations.
It does not repel all sinners from courts of
equity, nor does it apply to every
unconscientious act or inequitable conduct on
the part of the complainants. The inequity
which deprives a suitor of a right to justice
in a court of equity is not general
iniquitous conduct unconnected with the act
of the defendant which the complaining party
states as his ground or cause of action; but
it must be evil practice or wrong conduct in
the particular matter or transaction in
respect to which judicial protection or
redress is sought.
[Neubeck v. Neubeck,
94 N.J. Eq. 167, 170 (E
& A 1922).]
That maxim is discretionary on the part of a court. “It is the effect of the inequitable conduct on the total transaction which is determinative whether the maxim shall or shall not be applied.” Untermann, supra, 19 N.J. at 518. “Equities arise and stem from facts which call for relief from the strict legal effects of given situations.” Ibid. The record in this case
discloses no basis to apply the maxim to plaintiff. She acted in
good faith when she sought an Alabama divorce, when she married
defendant, and when she consented to his adoption of her
daughter.
Traditionally, we have permitted estoppel to be applied
successfully in three types of matrimonial cases: (1) to preclude
spouses from attacking their own prior divorces; (2) to preclude
a party who took an active role in assisting a spouse to obtain
an invalid divorce from attacking it; and (3) to preclude a
spouse who had a "relatively passive" role in obtaining the
divorce, but who relied on the divorce in marrying, from invoking
its invalidity. Kazin, supra, 81 N.J. at 95. A fourth category,
the quasi-estoppel which we apply to this case, was also
acknowledged in Kazin. Id. at 94.
Defendant's assertion that his marriage to plaintiff is
invalid is totally inconsistent with cohabiting together as
husband and wife for an extended period. He seeks to injure
plaintiff by depriving her of alimony and equitable distribution
under the statutory scheme set forth at N.J.S.A. 2A:34-23. As
the Court observed in Newburgh, “[u]nder certain circumstances,
one who enters into and accepts the benefits of a marriage may be
equitably estopped” from later denying its validity. Newburgh,
supra, 88 N.J. at 539. This is a case in which quasi-estoppel
applies, and it does not require proof that defendant somehow
participated in the Alabama proceedings.
The trial court accepted, as it was obligated to do, that
defendant was aware of plaintiff's divorce from Kenneth McDougall
at the time of their marriage in 1984. Plaintiff and defendant
participated in a ceremonial marriage and cohabited together
until December 1994, according to plaintiff. They built a house
together, and defendant adopted plaintiff's daughter from her
second marriage in 1993, some seven years after he learned of the
Alabama divorce in 1987. At no time did defendant either suggest
that plaintiff should take any additional action respecting the
putative Alabama divorce, or seek to legally attack his marriage
to plaintiff prior to filing an answer and counterclaim to
plaintiff's complaint in 1995. He continued in the relationship
as husband and wife for over seven years after, by his own
admission, he knew about the Alabama proceedings without
questioning the validity of the putative Alabama divorce.
“Matrimonial suits . . . ought not be permitted to take on the
aspects of a game wherein wits . . . and finesse prevail over
elemental right and justice.” Shepherd v. Ward,
5 N.J. 92, 111
(1950). Thus, in the eyes of the world, they were husband and
wife financially, socially, and legally for purposes of alimony,
equitable distribution, and marital torts.
The attack on the validity of the marriage is for the sole
purpose of avoiding alimony and equitable distribution under
N.J.S.A. 2A:34-23 and decisional law interpreting that statute.
In other words, defendant seeks to use the invalidity of the
putative Alabama decree to injure plaintiff financially. His
current position is inconsistent with his prior indifference
while holding himself out to the world as plaintiff's husband.
Under principles of quasi-estoppel, defendant cannot be permitted
to blow both hot and cold. Raspa v. Raspa,
207 N.J. Super. 371,
381 (Ch. Div. 1985). There is no evidential material showing
that plaintiff was anything but a victim of fraud in the Alabama
proceedings. She retained the services of an Alabama attorney,See footnote 2
and she gave sworn testimony before a judge in Alabama in what
appeared to her to have been a courtroom.
Under quasi-estoppel principles, a party who did not know of
a spouse's prior marriage and divorce, or one who knew about it
but played no role in obtaining the prior divorce, may
nonetheless be estopped from denying the validity of a current
marriage. Defendant, however, knew at least within three years
of the marriage, if not sooner.
Factors to be considered when determining whether quasi-estoppel has been satisfied are: (1) the length of time the
parties were married, (2) the acts undertaken by the parties that
indicate they held themselves out as husband and wife, and (3)
the good faith of the party who procured the first divorce.
Here, the parties had been married for twelve years before the
validity of the marriage was challenged, and only then was it
challenged in defense to plaintiff's divorce complaint. They
held themselves out to the public as husband and wife for at
least eleven years preceding the filing of the complaint.
Plaintiff was financially dependent on defendant.
They lived together in a house that was apparently built after
cohabitation began, and they ran a horse farm together.
Defendant even adopted plaintiff's twenty-one-year old daughter
in 1993 after she had resided with him for more than ten years.
As noted earlier, plaintiff acted in good faith when she obtained
the putative divorce in Alabama. Consideration of the evidential
materials in this case, therefore, leads to the conclusion that
defendant should be estopped from challenging plaintiff's
divorce. Brill, supra, 142 N.J. at 533-36.
Courts in other jurisdictions have similarly precluded
spouses from obtaining annulments by invoking invalid divorces
they did not help to procure and did not know were defective at
the time of their marriage. See Poor v. Poor,
409 N.E.2d 758
(Mass. 1980); Zirkalos v. Zirkalos,
40 N.W.2d 313 (Mich. 1949);
Lowenschuss v. Lowenschuss,
579 A.2d 377 (Pa. Super.), appeal
denied,
590 A.2d 297 (Pa. 1991). Those decisions support our
disposition that a spouse may not annul a marriage by invoking an
invalid foreign divorce after becoming aware of that foreign
divorce and yet continuing to live together as husband and wife
for a number of years. Defendant cannot be allowed to disavow
his actions over eleven years if he knew about the Alabama
proceedings when he married plaintiff, or for the eight to nine
years beginning in 1987. Either period satisfies the standard we
here articulate.
Other considerations counsel against granting an annulment
here as well. By attacking plaintiff's first divorce, defendant
is also calling into question the validity of plaintiff's second
marriage during which a daughter was born. Plaintiff's first
husband has also remarried and has children. If defendant's
marriage to plaintiff were annulled, that could invalidate her
second marriage if challenged. We find no compelling reason to
suggest that those relationships should be called into question.
Given the liberal changes in our divorce law after plaintiff
obtained the putative Alabama decree in 1968, we foresee that our
decision will have a very limited impact. A contrary decision,
however, could have an unsettling influence on people relying on
ancient foreign divorces. Such a result would be both unjust and
unwarranted. The equity jurisdiction of our courts should be
exercised to do justice, not to create injustice. Furthermore,
our decision will hopefully preserve family relations, which are
still essential to the fabric of our society.
We hold that based on the undisputed facts that are central
to our decision, defendant is estopped from denying the validity
of his marriage to plaintiff. The dismissed portion of the
complaint as amended is reinstated, and the matter is remanded to
the trial court to proceed with a disposition on the merits of
the claims for divorce, equitable distribution, alimony, and the
marital torts.
The judgment of the trial court is reversed, and the matter
is remanded for disposition that is consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-31 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
PATRICIA A. HEUER,
Plaintiff-Appellant,
v.
GILBERT J. HEUER,
Defendant-Respondent.
DECIDED January 8, 1998
CHIEF JUSTICE PORITZ PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1In 1970, two Alabama judges, including Judge Whitten, were indicted for conspiracy and mail fraud in a
"quickie divorce"
scheme involving many New Jerseyans. See 2 Judges, 7 Others Indicted in Dixie Divorce Racket, Newark
Star-Ledger, Aug. 21, 1970, at 1.
Footnote: 2The record does not inform us whether plaintiff consulted a New Jersey attorney who referred her to an
attorney in Alabama. Such a referral would not have violated the Canons of Professional Ethics. In re
Feltman,
51 N.J. 27, 28-29 (1968); Nappe v. Nappe,
20 N.J. 337, 346 (1956).