Clark v. Clark

Decision Date05 January 1935
Citation176 A. 81
PartiesCLARK v. CLARK et al.
CourtNew Jersey Court of Chancery

Syllabus by the Court.

1. A wife suing for separate maintenance under the statute (section 26, Divorce Act, 2 Comp. St. 1910, p. 2038, § 26), and desiring to abrogate a separation agreement under which she has received property, must carry her desire and professed abrogation into practical effect, before she may have a decree. Until fully repudiated the agreement stands in substitution of the husband's legal duty to support the wife. She must surrender or give credit for the property she still possesses or over which she has dominion under the agreement, before she is entitled to the benefits of a decree for maintenance. Where the parties have been fully heard, a decree for separate maintenance so conditioned may be made.

2. Before a wife may have a transfer made by her husband set aside as being fraudulent as to her, she must have the status of a creditor with her debt established by decree and unpaid.

3. In a suit for separate maintenance under the statute (section 26, Divorce Act, 2 Comp. St. 1910, p. 2038, § 26), a wife may attack a transfer made by her husband alleged to be fraudulent as to her, if the alleged fraudulent transferee is made a party to the suit. Such attack, if successful, informs the court with respect to the husband's property, at the least. And, if the attack be successful, the transfer may be set aside by the decree which provides for separate maintenance, or by a further decree, to the extent necessary to satisfy the first decree, or to secure the payment of the sums provided thereby to be paid.

Suit by Mary P. Clark against William A. Clark and others.

Decree in accordance with opinion.

Meyer Lobsenz, of Paterson, for complainant.

Randal B. Lewis, of Paterson, for defendants.

VAN WINKLE, Advisory Master.

The parties were married in December, 1926, the husband being approximately twenty years older than the wife, who had been divorced from her first husband. Counsel for the wife stated that "the courtship was clandestine" so far as the husband's daughter by his first wife and his friends were concerned. This daughter, Ruth C. Gorman, is a defendant. The wife alleges, in her bill, that the husband abandoned her on February 22, 1933; that on March 4, 1933, a separation agreement was executed by her and him wherein he promised to pay her $25 a week, and to make transfers of certain personal property to her; that in May, 1933, she asked her husband to return to her, and he refused to do so; that at the time of the marriage he was possessed of property; that' to avoid supporting her "he sold the tangible evidence of his wealth without consideration," and conveyed the same to his daughter, Ruth C. Gorman; that he was well employed as a salesman; that he is now receiving a pension and refuses to do any work; that he abandoned her in May or June, 1933, and has refused and neglected to support her. And the bill states that the wife "desires" to abrogate the separation agreement. The bill prays for separate maintenance, security therefor, sequestration, injunction, discovery; and that Ruth C. Gorman be decreed to transfer the property received by her from the husband to a receiver; and also that the transfers to Ruth C. Gorman be set aside and declared to be null and void.

The husband sets up the separation agreement defensively, and annexes a copy of it to his answer. In his answer he avers that he is now receiving $20 a week from his pension, and that he has been paying his wife one-fourth thereof "pursuant to the proportion of his earnings established by the terms of the separation agreement." He admits that he has refused to live with his wife, but denies that he refuses to provide for her. And he contends that should the agreement not be efficacious, the sum of $5 a week, which he is paying, is reasonable maintenance.

The agreement discloses that the husband, acting under it, transferred to his wife all the household furniture in the residence which had been occupied by him and the wife and in which the wife has continued to live separately; that he agreed to sign thereafter, when called upon to do so, any instrument that would convey this residence to the wife, or to any one she might designate; and also that he transferred an automobile to the wife. The agreement provides that the husband pay the wife $25 a week for maintenance and other necessities, the first payment to be made February 5, 1933, and payments to be made "so long as he is receiving his present salary," which was a salary of $100 a week, and that "if his present salary shall be reduced or shall in any wise be changed from the present amount, then the said weekly sum to be paid by the husband to the wife shall be mutually agreed upon in conformity with such reduction or change."

The actions of the wife which led the husband to leave the home, while distressing to him, did not amount to a matrimonial offense by the wife. Then came the separation agreement, which justified the husband in his separate living. However, as the wife thereafter requested the husband to return to the home, or to resume living with her, and he refused, which request and refusal he admits were made, it must be held that the husband has unjustifiably abandoned the wife. The wife had the right, despite the separation agreement, in the absence of wrongdoing on her part, to request the husband to resume living with her, and his refusal constituted an abandonment. Power v. Power, 65 N. J. Eq. 93, 55 A.111; Id., 66 N. J. Eq. 320, 58 A. 192, 105 Am. St. Rep. 653; Devine v. Devine, 89 N. J. Eq. 51, 104 A. 370. But the wife has not restored to the husband, nor offered to restore, the personal property now in her possession, which she received under the separation agreement; nor has she ceased to exercise dominion over the residence. So she has not abrogated the separation agreement. A separation agreement is not abrogated by the institution of a suit by a wife for separate maintenance. See, for a holding to the same effect in divorce suits, Rennie v. Rennie, 85 N. J. Eq. 1, 95 A. 571; Halstead v. Halstead, 74 N. J. Eq. 596, 70 A. 928. The husband's promise to pay a weekly sum, and the transfer of the property, and the dominion over the residence, were, and remain until the wife repudiates the separation agreement, in substitution of the husband's legal duty to maintain the wife. See Sabbarese v. Sabbarese, 104 N. J. Eq. 600, 146 A. 592. The wife may not successfully invoke a decree for maintenance unless she lets go of the agreement and its benefits. However, as the parties have been fully heard, not only may a decree for separate maintenance be made, if the wife is entitled to separate maintenance, conditioned upon her letting go of the benefits of the separation agreement, but such a decree should be made, with the purpose of obviating further proceedings.

The Uniform Fraudulent Conveyance Act of 1919 (Comp. St. Supp. 1924, p. 647, § 44 —142 et esq.) has been held to be unconstitutional to the extent that it attempted to give this court authority to hear and determine actions for debt. Without a judgment at law or the establishment of a lien this court has no jurisdiction to entertain the bill of a creditor to set aside a fraudulent conveyance of a debtor. Gross v. Pa. Mtg. & Loan Co., 104 N. J. Eq. 439, 146 A. 328; United Stores Realty Corp. v. Asea, 102 N. J. Eq. 600, 142 A. 38. However, a wife suing for separate maintenance necessarily sues, in this court, by virtue of the express provision of the twenty-sixth section of the Divorce Act (2 Comp. St. 1910, p. 2038, § 26).

A wife's right to set aside a transfer by her husband, fraudulent as to her, depends upon her status as a creditor, not as a wife. And the same questions are to be answered where a wife sues to set aside a transfer by her husband alleged to be fraudulent as to her, as where any creditor of the husband sues to set aside a transfer alleged to be fraudulent as to such creditor. Is she in fact a creditor? Has her claim been established by judgment or decree? Is the transfer fraudulent as to her? Either she is a creditor, or she is not. Either the transfer is fraudulent as to her, a creditor with her claim established, or it is not. There...

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