JOYCE C. NADHIR v. E'JAZZ A. NADHIR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOYCE C. NADHIR,

Plaintiff-Respondent,

v.

E'JAZZ A. NADHIR,

Defendant-Appellant.

__________________________

May 7, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0059-13.

E'Jazz A. Nadhir, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this matrimonial matter, defendant E'Jazz A. Nadhir appeals from the March 28, 2013 final judgment of divorce (FJOD). Defendant contends that his twenty-nine-year marriage to plaintiff Joyce C. Nadhir is absolutely void because he did not sign or ratify the parties' marriage license application or ratify the marriage license. We reject this contention and affirm.

We derive the following facts from the record. On September 23, 1983, plaintiff submitted a marriage license application to the registrar of the Township of Berkeley purportedly bearing defendant's signature. Defendant claimed he was incarcerated at the time plaintiff submitted the application and she misrepresented that he signed the document.1 However, except for his signature and mother's maiden name, he did not dispute the accuracy of all of the information contained in the application or that he and plaintiff had a blood test that was required in 1983 to apply for and obtain a marriage license. See N.J.S.A. 37:1-20 (repealed by L. 1997, c. 230, 4).

Defendant also did not dispute that he and plaintiff obtained a marriage license prior to participating in a religious ceremony on October 8, 1983, and the person who performed the ceremony and two witnesses signed the marriage license.2 Nor did he dispute that: he and plaintiff cohabitated and held themselves out as husband and wife from 1983 until their separation in 2011; they had a son in 1984; they owned real property jointly and had joint bank accounts; they filed tax returns as a married couple; and he submitted the marriage license to his employer to place plaintiff on his health insurance policy.

Further, defendant admitted that in April or May of 1984, he discovered plaintiff's alleged misrepresentation of his signature on the marriage license. He did not challenge the legality of the marriage until after plaintiff filed a complaint for divorce in 2012. He alleged that the marriage was absolutely void pursuant to N.J.S.A. 37:1-2, -8, -10, Dacunzo v. Edgye, 19 N.J. 443 (1955), and Yaghoubinejad v. Haghighi, 384 N.J. Super. 339 (App. Div. 2006), because he did not sign or ratify the marriage license application or ratify the marriage license itself. Relying on Danes v. Smith, 30 N.J. Super. 292 (App. Div. 1954), the trial judge held that defendant was estopped from challenging the legality of the marriage.

On appeal, defendant raises the same arguments he raised before the trial judge. He also argues that the marriage is absolutely void pursuant to N.J.S.A. 2A:34-1d based on "fraud as to the essentials of marriage." Because the judge's ruling concerns questions of law, we owe the trial judge's ruling no deference and review the matter de novo. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We begin our review with the 1983 versions of the statutes on which defendant relies. N.J.S.A. 37:1-2 provided, in pertinent part, that "[b]efore a marriage can be lawfully performed in this State, the persons intending to be married shall obtain a marriage license from the licensing officer and deliver it to the person who is to officiate. . . ."

N.J.S.A. 37:1-8 provided, in pertinent part, that

[a] licensing officer shall, before issuing a marriage license, require the contracting parties . . . to appear before him and subscribe and swear to an oath attesting the truth of the facts respecting the legality of the proposed marriage as set forth in the form supplied by the State Bureau of Vital Statistics. Said testimony shall be verified by a witness of legal age. A licensing officer shall issue a license only if it is thus made to appear before him that no legal impediment to the marriage exists.

N.J.S.A. 37:1-10 provided, in pertinent part, that

no marriage contracted on and after December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties shall have obtained a marriage license as required by [N.J.S.A. 37:1-2], and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized by [N.J.S.A. 37:1-13] to solemnize marriages; and failure in any case to comply with both prerequisites aforesaid, which shall always be construed as mandatory and not merely directory, shall render the purported marriage absolutely void.

N.J.S.A. 2A:34-1d provided, in pertinent part, that "[j]udgments of nullity of marriage may be rendered in all cases, when . . . . [there is] fraud as to the essentials of marriage; and [the parties have not] subsequently ratified the marriage."

Defendant contends that the marriage is absolutely void pursuant to these statutes because plaintiff fraudulently misrepresented his signature on the marriage license application. Defendant is wrong. A marriage is deemed absolutely void for a misrepresentation in a marriage license application only if a statute so provides. See In Re Estate of Silverman, 94 N.J. Super. 189, 193 (App. Div. 1967) (holding that a misrepresentation in the marriage license application "does not nullify the marriage solemnized under it unless a statute specifically so provides"). N.J.S.A. 37:1-2, -8, and N.J.S.A. 2A:34-1d do not provide that a marriage is absolutely void because of a fraudulent misrepresentation in a marriage license application. Thus, those statutes do not apply here. The only statute that applies, N.J.S.A. 37:1-10, provides that a marriage is absolutely void only if the parties do not obtain a marriage license and the marriage was not solemnized. Here, the parties obtained a marriage license prior to solemnizing the marriage in a religious ceremony. Accordingly, none of these statutes provide a basis to absolutely void the marriage.

In addition, there is no reason to nullify the marriage pursuant to N.J.S.A. 2A:34-1(1)d. "Fraud as to the essentials of marriage" relates to issues such as concealment of a fixed determination not to have children, Williams v. Witt, 98 N.J. Super. 1, 3 (App. Div. 1967); misrepresentation of religion, Bilowit v. Dolitsky, 124 N.J. Super. 101, 104-05 (Ch. Div. 1973); concealment of a drug addiction, Costello v. Porzelt, 116 N.J. Super. 380, 388-89 (Ch. Div. 1971); concealment of pregnancy by another man, B. v. S., 99 N.J. Super. 429, 432 (Ch. Div. 1968); concealment of a mental condition, Houlahan v. Horzepa, 46 N.J. Super. 583, 588-89 (Ch. Div. 1957); concealment of impotence, Steerman v. Snow, 94 N.J. Eq. 9, 12-13 (Ch. 1922); concealment of a hereditary chronic medical condition, Davis v. Davis, 90 N.J. Eq. 158, 161-63 (Ch. 1919); and concealment of venereal disease, Crane v. Crane, 62 N.J. Eq. 21, 26 (Ch. 1901). Because there is no evidence of fraud as to the essentials of marriage in this case, the marriage cannot be nullified pursuant to N.J.S.A. 2A:34-1d.

Even if N.J.S.A. 37:1-10 or N.J.S.A. 2A:34-1d applied, there is no question that defendant subsequently ratified the marriage license application and marriage license. "Ratify" means "to approve and sanction formally." Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/ratify (last visited April 28, 2014). Defendant and plaintiff had a blood test, which was required in 1983. N.J.S.A. 37:1-20 (repealed by L. 1997, c. 230, 4). They could not have applied for or obtained a marriage license without having the test and submitting a medical certificate confirming that they were not infected with syphilis. Ibid. And the medical certificate had to accompany both the application and marriage license. N.J.S.A. 37:1-7 and -17. Thus, by submitting to the required blood test, defendant clearly approved and formally sanctioned both the marriage license application and marriage license.

Nor is there any question that defendant ratified the marriage and is estopped from challenging its legality. Dacunzo and Yaghoubinejad do not change this result. In Dacunzo, unbeknownst to the plaintiff-husband, the defendant-wife falsely stated in the marriage license application that she was single; however, she was still legally married to her former husband. Dacunzo, supra, 19 N.J. at 447. The parties obtained a marriage license, had a ceremonial marriage, cohabitated and held themselves out as husband and wife for over six years, and had two children. Id. at 446. Our Supreme Court declined to apply estoppel to validate the marriage. Id. at 454. Instead, the Court found the marriage was void ab initio because plaintiff was married to another man when she applied for the marriage license, which was a legal impediment to issuing the license. Id. at 454-55. Such is not the case here.

In Yaghoubinejad, the parties participated in a marriage ceremony, but, unlike here, never obtained a marriage license. Yaghoubinejad, supra, 384 N.J. Super. at 340. We declined to apply estoppel to validate the marriage, concluding the marriage was absolutely void pursuant to N.J.S.A. 37:1-10 due to the absence of a marriage license. Id. at 341, 344. We also found there was no indicia of marriage, such as exists in this case. Id. at 343-44.

Here, despite knowing in 1984 about the alleged misrepresentation, defendant continued cohabitating with plaintiff and holding her out as his wife, he had a son and joint banks accounts with plaintiff, owned property jointly, filed tax returns as a married couple, and submitted the marriage license to his employer to place plaintiff on his health insurance as his wife. In addition, by submitting to the required blood test, defendant knew that plaintiff was submitting a marriage license application. Because he participated in the misrepresentation required to obtain the marriage license, he is estopped from denying the legality of the marriage. Danes, supra, 30 N.J. Super. at 297.

We also conclude that laches applies. The doctrine of laches "is 'invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplainable delay in exercising that right to the prejudice of the other party.'" Fox v. Millman, 210 N.J. 401, 418 (2012) (quoting Knorr v. Smeal, 178 N.J. 169, 180-81 (2003)). "'Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned.'" Ibid. (quoting Knorr, supra, 178 N.J. at 181).

There are occasions when an exorbitant passage of time alone is sufficient to require application of laches. Lavin v. Bd. of Educ. of City of Hackensack, 90 N.J. 145, 152-53 (1982). We conclude that the circumstances of this case permit the application of laches even if we were to ignore evidence in the record suggesting that the delay has generated prejudice to plaintiff. The length of delay here was extraordinary and compels a basis to reject defendant's challenge to the legality of the marriage.

Affirmed.

1 Defendant produced a purported letter from the Department of Corrections to show his dates of incarceration. The letter was not certified as a true copy, nor was it supported by an affidavit in accordance with Rule 1:6-6. Thus, it was a mistaken use of discretion for the trial judge to admit this hearsay document into evidence. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

2 N.J.S.A. 37:1-17 requires the person before whom the marriage was solemnized and at least two witnesses who were present at the marriage ceremony to sign the marriage license. The statute does not require the signatures of the marrying parties.