Applegate v. Applegate.

• Decision Date: 13 April 1944
• Docket Number: No. 216.,216.
• Citation: 38 A.2d 119
• Parties: APPLEGATE v. APPLEGATE.
• Court: New Jersey Supreme Court

38 A.2d 119

APPLEGATE

v.APPLEGATE.

No. 216.

Court of Errors and Appeals of New Jersey.

April 13, 1944.

Appeal from Court of Chancery.

Suit by Agnes Nancy Applegate against John Reginald Applegate for discovery in aid of execution under a chancery money decree and for specific performance of an agreement. From an order dismissing complaint, the complainant appeals.

Affirmed.

1. A proceeding in Chancery by way of discovery in aid of execution under a Chancery money decree is supplementary to the main suit and should be appended thereto; it should not be by original and independent bill.

2. Equity will not grant specific performance of an agreement to pay alimony.

3. Although alimony is a subject specifically committed to the court of chancery and arising from the present or past status of the parties as husband and wife, the power of regulating the amount of alimony in cases where the wife is entitled to it, of supervising agreements between the parties in that regard, and of enforcing them if deemed just or declining to recognize them if otherwise, grows out of the existing or pre-existing marital status, and is not controlled by the rules of specific performance of contracts.

BROGAN, Chief Justice, dissenting.

Harry Kay, of Newark, and Richard Spitz, of Irvington, for complainant-appellant.

Bernard A. Reilly, of Newark, for defendant-respondent.

CASE, Justice.

On October 27, 1943, appellant filed a bill of complaint in Chancery alleging that on May 8, 1934, she secured a final decree for divorce against the defendant; that complainant was therein allowed her costs and fees in the sum of $349.77 and interest; that a writ of execution thereon issued June 22, 1934, and was later returned with a levy on personal property annexed; and that the respondent has not paid the said fees and costs although, according to the information of the complainant, he receives earnings of $60 per week. That is stated as the first cause of action. The bill contains a second cause of action in which the complainant seeks specific performance of a written agreement dated July 15, 1932, wherein the husband agreed to pay her for her support the sum of $15 weekly. The prayers for relief are that the defendant should answer, that an account be taken of the amount due on the agreement, that the defendant be decreed and directed to pay the arrearage thereon, that an order be made directing the defendant to appear and make discovery regarding his income and estate, that a writ of execution issue against wages and income to satisfy said fees, costs and arrearage, and that ‘a decree may be made specifically enforcing the performance by defendant of the maintenance agreement’. On the filing of the bill an order went directing the defendant to show cause why execution should not issue calling on the sheriff of Essex County to make from the defendant's wages, salary and income the sum due for fees, costs and interest. On a continuance of the return day the court made an order determining that the first part of the bill disclosed no cause of action, that Chancery had no jurisdiction to grant the relief prayed for in the second part and that the order to show cause and the bill of complaint should be dismissed. That order is now under appeal.

As to the first cause of action: Appellant cites in support of her procedure R.S. 2:29-57, N.J.S.A., which gives a Chancery money decree, with certain exceptions, the effect of a judgment at law in the Supreme Court, and R.S. 2:29-110, N.J.S.A. the pertinency of which is not apparent because it authorizes a judgment creditor in an action at law to file a bill for discovery in Chancery. Without going into other irregularities and doubts, it is enough to say that the judgment upon which appellant desires to proceed is a Chancery decree and that, by the logic of the situation as well as by analogy to a like proceeding at law, the proceeding in aid of execution is supplemental to the original suit and should be appended thereto by way of petition, as was done in Whitfield v. Kern, 125 N.J.Eq. 515, 6 A.2d 411, or by some appropriate form of dependent action. The statutory reference in R.S. 2:29-110, supra, to a bill in Chancery has relation to a Chancery proceeding in aid of a law judgment and in such an instance the application to Chancery would, of course, find there no earlier proceeding to which it could attach. Cf. Baader v. Mascellino, 116 N.J.Eq. 126, 172 A. 549, and Cohen v. Dwyer, 133 N.J.Eq. 226, 31 A.2d 764, affirmed 134 N.J.Eq. 350, 35 A.2d 709, which were on bills for discovery in aid of law judgments.

The second cause of action does not seek alimony; it is a bill for specific performance of an agreement for the wife's support made a year and a half before the institution of the divorce proceedings. It seeks compulsion for present and future performance of the agreement and a money decree for arrearages calculated at the time of the filing of the bill at $6,967.50 plus interest.

The agreement sued upon recited that the husband had for a time then past refused to live with the wife and that the parties had not during that time cohabited, that the husband recognized his legal obligation for his wife's support and maintenance, that he desired to avoid controversies and that consequently, to the end that the parties might live separately without molestation one from the other, the husband agreed to pay $15 weekly to the wife so long as the then existing financial status of the parties should continue, until the wife's remarriage ‘or according to the terms of an order made in any proceedings had between the parties by any court of competent jurisdiction in the premises'; and the wife agreed not to molest the husband or to contract debt in his name; and both parties further agreed that the agreement should not be a bar to any action affecting their marital relations, that they would be bound by any order made in a competent proceeding and that ‘in lieu of specific reference thereto’ the provisions of the agreement should continue in force and effect.

That was purely an agreement between parties. No court has taken cognizance of it or given sanction to it; and nothing is now asked of the court with respect to it except that the court will enforce it according to its terms, including the granting of a money decree for past due sums.

It has been settled by the repeated decisions of this court that a bill does not lie for the specific performance of such a contract.

‘Our decisions hold uniformly that alimony is a subject specifically committed to the Court of Chancery and arising from the present or past status of the parties as husband and wife. The jurisdiction not only exists while that relation persists, but by the express language of the Divorce Act [Comp.Stat. p. 2035 § 25, N.J.S.A. 2:50-37], continues after decree of divorce; and it necessarily includes the power, in cases where the wife is entitled to alimony, to regulate the amount of such alimony from time to time, to supervise agreements between the parties in that regard, to enforce them if deemed just, and to decline to recognize them otherwise. Calame v. Calame, 25 N.J.Eq. 548. But these powers grow out of the existing or pre-existing marital status, and are not controlled by the rules of specific performance of contracts. The bill in this case, being framed as a bill for specific performance, was properly dismissed as such, and the decree will accordingly be affirmed, but without prejudice to an application for suitable alimony, on which application the wife may legitimately ask the court to recognize the agreement as a basis for its award, and the court will recognize it or not as it thinks proper.’ Apfelbaum v. Apfelbaum, 111 N.J.Eq. 529, 162 A. 543, 544, 84 A.L.R. 298, and an order for alimony subsequently made in Chancery was affirmed here, 115 N.J.Eq. 555, 171 A. 794.

In Second National Bank of Paterson v. Curie, 116 N.J.Eq. 101, 172 A. 560, 564, the husband and wife had for years lived an unhappy marital existence. The wife resolved to leave her husband and seek relief in court, but a settlement agreement was reached and the wife forebore to separate herself from her husband and to sue. The agreement named the Second National Bank of Paterson as trustee and the husband delivered to the trustee $235,000 upon the provision that the trustee should pay the net income of $12,000 to the wife. Upon the failure of the fund to produce that income the trustee filed its bill seeking the advice of the court and the husband and wife filed counterclaims, each...