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May 28, 1941

Petition of TAFFEL

The opinion of the court was delivered by: HULBERT

HULBERT, District Judge.

The petitioner Rose Taffel, applied for naturalization as a citizen of the United States under the provision of the Act of September 22, 1922 (Title 8 U.S.C.A. § 368) as the wife of an American citizen.

Objection thereto was made by the District Director of Immigration and Naturalization Service, on the ground:

 (a) That petitioner is not the wife of an American citizen, and

 (b) That petitioner is not a person of good moral character since she is living under the status of a wife with a man to whom she is not lawfully married.

 Petitioner's "husband" was previously married to one Clara Weinberg Taffel in New York City on January 14, 1919, and 14 years later, viz; January 4, 1933, he filed a petition for divorce against Clara Weinberg Taffel in the Second Judicial District Court, State of Morelos, United States of Mexico, on the ground of "incompatibility of temper". Clara Weinberg Taffel filed an answer in said action on January 7, 1933, admitting the allegations of the complaint. Both parties appeared by attorneys. Neither had ever resided in Mexico, and the final decree of divorce was entered in said action on January 17, 1933.

 On December 7, 1933, at Jersey City, New Jersey, petitioner and her "husband" went through a marriage ceremony, and it is upon the basis of this "marriage" that petitioner claims to be the wife of an American citizen and seeks naturalization as such.Thus the question presented is whether the Mexico decree of divorce obtained by petitioner's "husband" on January 17, 1933, was a valid decree, conferring upon the plaintiff in that action the legal capacity to contract a valid remarriage with petitioner.

 The presumption of validity of a judgment may be overcome and the judgment attacked collaterally on the ground of lack of jurisdiction. Olmsted v. Olmsted, 216 U.S. 386, 30 S. Ct. 292, 54 L. Ed. 530, 25 L.R.A., N.S., 1292, affirmed 190 N.Y. 458, 466, 83 N.E. 569, 123 Am.St.Rep. 585.

 The mere recital of jurisdiction in a judgment or decree is not conclusive and may be contradicted by the actual fact. Thompson v. Whitman, 85 U.S. 457, 469, 21 L. Ed. 897. Hence the instant "mail order" divorce decree may be thoroughly scrutinized and an inquiry designed to determine as to whether the Mexican court had jurisdiction over the marital status of the parties involved.

 The petitioner's "husband" and his first wife were married in New York City; they retained New York attorneys to represent them respectively, in the Mexican divorce action; the husband is now a resident of New York and in business here, and, of course, the petitioner is a resident of New York. If, however, the residence of the petitioner and her "husband" was in New Jersey at the time the "marriage" took place there on December 7, 1933, it would not change the situation. None of the parties "ever resided in Mexico" so that there can be no question whatsoever that the matrimonial domicile was initiated and remained in New York.

 The basic principle underlying the dissolution of the marital status is that the marriage relationship is so interwoven with public policy that "the consent of the parties is impotent to dissolve it contrary to the law of the domicil." Andrews v. Andrews, 188 U.S. 14, 41, i3 S. Ct. 237, 244, 47 L. Ed. 366.

 In New York the law of domicile expressly provides that husband and wife cannot contract to dissolve the marriage relationship (Domestic Relations Law, Section 51), which is precisely what the parties attempted to do in the Mexican divorce action by procuring a consent divorce without ever relinquishing their matrimonial domicile here. Though the Mexican court may have had jurisdiction over the persons by virtue of their voluntary appearance by attorneys, the court obviously lacked jurisdiction over the subject matter, the matrimonial status, and thus completely lacked juridical power to dissolve that status. Haddock v. Haddock, 201 U.S. 562, 26 S. Ct. 525 50 L. Ed. 867, 5 Ann.Cas. 1.

 While the marital status of the parties resident in the State of New York is a matter of exclusively domestic concern and its courts are not required to recognize the judgment of a foreign country as having effect upon that status, if the parties were residents of New Jersey at the time of the Mexican divorce decree was procured, it would still be null and void.

 The Divorce Act of New Jersey, § 33, 2 Comp.St. 1910, p. 2041, N.J.S.A. 2:50-35, provides: "Nothing herein contained shall be construed to limit the power of any court to give such effect to a decree of annulment or divorce by a court in a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this state shall go into another state, territory or country, in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, or for a ...

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