Cohen v. Cohen

• Decision Date: 05 November 1936
• Parties: COHEN v. COHEN.
• Court: New Jersey Court of Chancery

188 A. 244

COHEN

v. COHEN.

Court of Chancery of New Jersey.

Nov. 5, 1936.

Syllabus by the Court.

1. The Court of Chancery has exclusive jurisdiction over contracts between husband and wife.

2. It has exclusive statutory jurisdiction over causes involving alimony, and this extends to all agreements between husband and wife concerning alimony.

3. "Alimony" is a technical term. It has no common-law existence as a separate and independent right, but is an incident to a suit for divorce, nullity, or maintenance. In this state it is of purely statutory origin, the statutory scheme being modeled after the practice of the ecclesiastical courts of England with reference to alimony. It is a personal, and not a property, right, and is the allowance which a husband, by order of court, pays to his wife living separate from him, for her maintenance or the provision made by the court for the sustenance of a divorced wife.

4. Alimony is a subject specifically committed to the Court of Chancery by statute, and can be obtained only by the statutory procedure. Any agreement between parties to an action for divorce, providing for support of the wife and entered into without the approval of the Court, is evidential only and cannot be the subject of specific performance.

5. A contract between husband and wife, providing for the separate maintenance of the wife, entered into prior to proceedings for divorce, nullity, or maintenance, is not a contract concerning alimony. It is a contract concerning the common-law right of the wife to support which arises out of the marital status, and the provisions for support contained in such a contract, if fair and just, may be enforced in the Court of Chancery to the extent of a money decree for accrued arrearages; but it will not be enforced a futuro.

6. Such contract, because of the incapacity of the parties, is void at law but valid in equity to the extent that it is equitable and just. On a bill to enforce such an agreement, the inherent, not the statutory, jurisdiction of the Court of Chancery is invoked, and the relief afforded is governed by equitable rules and principles.

7. Apfelbaum v. Apfelbaum, 111 N.J.Eq. 529, 162 A. 543, 84 A.L.R. 298; Second National Bank v. Curie, 116 N.J.Eq. 101 , Aiosa v. Aiosa, 119 N.J.Eq. 385, 183 A. 219; Phillips v. Phillips, 119 N.J.Eq. 462, 183 A. 220, distinguished.

8. The inherent jurisdiction of the Court of Chancery is defined and limited by the Constitution. It cannot be cut down or further limited except by constitutional amendment.

Suit by Sadie Cohen against Max Cohen. Decree for complainant.

Anschelewitz, Frankel & Barr, of Asbury Park, for complainant.

Giordano, Golden & Hurley, of Long Branch, for defendant.

BERRY, Vice Chancellor.

The bill is for a decree directing the defendant to pay to the complainant arrearages of support moneys accrued under the terms of a separation agreement of the parties. When the bill was filed, a suit for divorce by the husband against his wife was pending and the final decree for divorce on the ground of adultery was entered therein on December 14, 1935. Subsequent to the entry of that decree, the complainant amended her bill, reciting the decree of divorce and demanding payment of arrearages accrued to the date of said decree. The amount of the accrued arrearages is not in dispute, nor is there any question touching the fairness of the agreement itself, or the manner in which it was obtained; but the defense is that the Court of Chancery is without jurisdiction to specifically enforce the separation agreement, reiving on Apfelbaum v. Apfelbaum, 111 N.J.Eq. 529, 162 A. 543, 84 A.L.R. 298; Second National Bank v. Curie, 116 N.J.Eq. 101, 172 A. 560, 564; Aiosa v. Aiosa, 119 N.J.Eq. 385, 183 A. 219, and Phillips v. Phillips, 119 N.J.Eq. 462, 183 A. 220, 221. Defendant also claims that complainant's remedy, if any, is at law, and that the subsequent unchastity of the wife determined by the final decree of divorce absolves him from liability under the agreement. But a contract between husband and wife is void at law (Wood v. Chetwood, 44 N.J.Eq. 64, 14 A. 21; Buttlar v. Buttlar, 71 N.J.Eq. 671, 65 A. 485), and the separation agreement here involved was not contingent upon the continued chastity of the wife, and under such circumstances her subsequent unchastity is no defense to a suit on the agreement. Thomas v. Thomas, 104 N.J. Eq. 607, 146 A. 431; Sabbarese v. Sabbarese, 104 N.J.Eq. 600, 146 A. 592, affirmed 107 N.J.Eq. 184, 152 A. 920. And rightly understood, I do not consider the decisions relied upon by the defendant a bar to the relief sought. It is important to note that the present bill does not seek the specific future performance of the separation agreement, but only a money decree for the amount due under the terms of that agreement at the date of the entry of the final decree of divorce.

The real difficulty in the instant case arises from what I believe to be a misconception of the purport of the decisions relied upon by the defendant, and as to which there seems to be some uncertainty at the bar. See article by Alfred C. Clapp, entitled "Marital Separation Agreements," 59 N.J.L.J. 105 (issue of March 26, 1936). But, in my judgment, this misconception arises from the fact that in the opinions of the appellate court, in the four cited cases, clarity, unfortunately, has been sacrificed to brevity. It can hardly be supposed that our court of last resort intended by those decisions to alter the settled law of this state, as exemplified in its own decisions, and in those of the subordinate courts of both law and equity covering a period of more than a century prior to Apfelbaum v. Apfelbaum, which was decided in 1932. It had previously been held by these courts that while agreements to separate would not be enforced, yet provisions for the support of the wife contained in such agreements would be enforced if fair and just. Emery v. Neighbour (1824) 7 N.J.Law, 142, 11 Am.Dec. 541; Calame v. Calame (Errors and Appeals, 1874) 25 N.J.Eq. 548; Aspinwall v. Aspinwall (Errors and Appeals, 1892) 49 N.J.Eq. 302, 24 A. 926, 927; Buttlar v. Buttlar (Errors and Appeals, 1899) 57 N.J.Eq. 645, 42 A. 755, 73 Am.St.Rep. 648; Streitwolf v. Streitwolf, (Errors and Appeals, 1899) 58 N.J.Eq. 570, 43 A. 904, 45 L.R.A. 842; Mockridge v. Mockridge (Chancery, 1901) 62 N.J.Eq. 570, 50 A. 182; Buttlar v. Buttlar (Chancery, 1906) 71 N.J.Eq. 671, 65 A. 485; Halstead v. Halstead (Chancery, 1908) 74 N.J.Eq. 596, 70 A. 928; Rennie v. Rennie (Chancery, 1915) 85 N.J.Eq. 1, 95 A. 571, 572; Boehm v. Boehm (Chancery, 1917— 1918) 88 N.J.Eq. 74, 101 A. 423; Hollingshead v. Hollingshead (Chancery, 1919, 1920) 91 N.J.Eq. 261, 110 A. 19; Whittle v. Schlemm (Errors and Appeals, 1920) 94 N.J.Law 112, 109 A. 305, 8 A.L.R. 1447; Sobel v. Sobel (Errors and Appeals, 1925) 99 N.J.Eq. 376, 132 A. 603; Biddle v. Biddle (Chancery, 1929) 104 N.J.Eq. 313, 145 A. 639; Patton v. Patton (N.J. Ch.1904) 58 A. 1019. Certainly such intent cannot be attributed to the court in the absence of an express disapproval of the existing law, and a definite repudiation or overruling of its decisions establishing that law. Graves v. State, 45 N. J.Law 203; State v. Taylor, 68 N.J.Law 276, 279, 53 A. 392; Bowman v. Freeholders of Essex, 73 N.J.Law 543, 547, 64 A. 1010; Jersey City v. Blume, 101 N.J.Law 93, 95, 127 A. 214. That it was unaware of those cases is inconceivable. That it intended to repudiate them without even mentioning them is unbelievable.

One of the earliest cases touching this subject is Emery v. Neighbour (Supreme Court, 1824) 7 N.J.Law 142, 11 Am.Dec. 541. In that case, pursuant to a separation agreement signed by the husband and wife, but not by the trustees therein named, a certain sum of money was placed in the hands of the named trustees for the exclusive use of the wife for her support and maintenance. The wife died and disposed of the balance of the fund by will. Her administrator c. t. a. brought an action of debt against the trustees and judgment was entered for the plaintiff. Ford, J., said that two questions were presented: First, whether the parties to the agreement "are so bound by law to fulfill the contract that a court of equity would decree specific performance"; or, second, "a court of law [would] award damages for the breach of it." It was held that that portion of the agreement providing for separation was void as repugnant to the marriage contract, but that the provision for maintenance was valid, and that since the moneys were held by the trustees the suit at law was proper. Judge Ford said: "I see no necessity for driving these parties into a court of equity while the same justice can be done between them at law in an action for money had and received, without the prostration of any principle or straining of jurisdiction." The inference is justified that if a suit for specific performance had been brought by the wife against the husband to compel a deposit of moneys pursuant to the agreement, that portion of the agreement being valid, she would have been entitled to a decree. At least, the court recognized the enforceability of the agreement in equity so far as its money provisions were concerned. In this connection, see the comment by Chief Justice Beasley in Calame v. Calame, supra, and the more recent case of Braunstein v. Guarantee Trust Company, 114 N.J.Eq. 181, 168 A. 434; and, also, the proceedings in this court on remittitur in Second National Bank v. Curie, supra, hereinafter discussed.

The next case of importance, and one which has been considered a leading case is that of Calame v. Calame, supra. That involved an agreement in writing by the husband to give his wife land and money in lieu of her claims for maintenance, and it was held enforceable in equity. Chief Justice Beasley, speaking for the Court of Errors and Appeals, said the practice of enforcing such an agreement for support, but not for separation,...