Conwell v. Conwell

• Decision Date: 12 December 1949
• Docket Number: No. A--42,A--42
• Parties: CONWELL v. CONWELL.
• Court: New Jersey Supreme Court

Page 266

3 N.J. 266

69 A.2d 712

CONWELL v. CONWELL.

No. A--42.

Supreme Court of New Jersey.

Argued Nov. 14, 1949.

Decided Dec. 12, 1949.

Saul J. Zucker, Newark, argued the cause for appellant (Kristeller & Zucker, Newark, attorneys).

Fred A. Lorentz, Newark, argued the cause for respondent (Lorentz & Stamler, Newark, attorneys).

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a judgment of the Superior Court, Chancery Division, in a 'matrimonial action', as defined in Rule 3:82(b). The appeal was taken to the Appellate Division under Rule 4:2--2(c) but was certified by the court on its own motion under Rule 1:5--1(a).

Two questions are presented for our determination, first, can support of a minor child of parents divorced in another state be ordered by the courts of this state against a resident of this state when the child is neither an inhabitant of, nor physically within this state, and further, can a judgment for support arrearages based on a decree of a sister state under the same circumstances be ordered; second, was the Florida decree insofar as it purports to provide for the support of the child a final decree so as to be entitled to full faith and credit in New Jersey, under the Federal Constitution?

Plaintiff and defendant were married in New York in September, 1939. One child, a daughter, was born of the marriage. She is now ten years of age and is in the custody of and lives with her mother, who admittedly is a resident of Richmond, Va. Defendant is a resident of this state.

In May, 1946, plaintiff and defendant were divorced by a final decree of the State of Florida, an appearance having been entered by the defendant. That decree, by its terms, awarded the care, custody and control of the minor child to the plaintiff with reasonable visitation rights being granted the defendant. That final decree awarded no alimony to the plaintiff but required that the defendant pay to her the sum of $80 per month for the support of the minor child. Since the entry of that decree the defendant has made only one support payment of $40.

The complaint asks relief on two counts (1) to compel the defendant to provide suitable support and maintenance for the child and (2) for judgment in the amount of the unpaid accrued arrearages under the Florida decree, amounting to $2,840, with interest and costs. Plaintiff gave notice of a motion for relief pendente lite, the disposition of which was held pending decision on this appeal, and defendant served notice of a cross-motion to dismiss the complaint upon the ground it failed to set forth a cause of action upon which relief could be granted. Defendant's motion was denied and this appeal is from the order entered thereon.

1. R.S. 9:2--1 et seq., N.J.S.A., an act concerning minors, was enacted as P.L.1902, Chap. 92 and provides, inter alia, 'After a divorce decreed in any other state or country, If minor children of the marriage are inhabitants of this state, the court of chancery, on the petition of either parent, or of a next friend in behalf of the children, such notice being given to parents as the court shall direct, may make such decree concerning their care, custody, education and maintenance as if the divorce had been obtained in this state. * * *' An amendment, containing matters which do not presently concern us was passed in 1936. P.L.1936, Chap. 247.

It cannot be questioned but that to predicate an action on this statute the child's residence in this state is a jurisdictional prerequisite. Goodman v. Goodman, 194 A. 866, 15 N.J.Misc. 716 (Ch.1937). See Hachez v. Hachez, 124 N.J.Eq. 442, 1 A.2d 845, (E. & A. 1938); Brown v. Parsons, 136 N.J.Eq. 493, 42 A.2d 852, (E. & A. 1943); In re Smith, 4 N.J.Super. 400, 67 A.2d 478, (App.Div.Super.Ct.1949).

Appellant relies strongly on Harrington v. Harrington, 141 N.J.Eq. 456, 57 A.2d 542, (Ch.1948), modified 142 N.J.Eq. 684, 61 A.2d 466, (E. & A. 1948). The bill of complaint in that case sought specific performance of an agreement to support a wife and child, the agreement having been made in another state where the wife and child resided. The Court properly held that while the Court of Chancery had power to vary the support of a minor child of parents divorced in another state, the child must under the express language of the statute, R.S. 9:2--1, N.J.S.A., be an inhabitant of this state to give the court jurisdiction. The Court further held R.S. 2:50--37, N.J.S.A., not applicable because the parties had expressly agreed that the contract be governed by the laws of the state of their domicile at the time of its execution. The clear implication of that opinion is that but for that admonition R.S. 2:50--37, N.J.S.A., would have applied. The former Court of Errors and Appeals, in modifying the appeal below, stated the provisions of the decree for specific performance of the agreement for maintenance and support of the infant complainant was directly contrary to established law (citing cases) and R.S. 2:50--37, N.J.S.A. This is persuasive that the court considered this latter statute applicable.

R.S. 2:50--37, N.J.S.A., was enacted as section 25 of the Divorce Act, P.L.1907, Chap. 216. It was amended by P.L.1933, Chap. 145, Sec. 1, and both this statute and R.S. 9:2--1 were carried over into the Revision of 1937, N.J.S.A. It provides as follows: 'Pending a suit for divorce or nullity, Brought in this State or elsewhere, or after decree of divorce, Whether obtained in this State or elsewhere, the Court of Chancery may make such order touching the alimony of the wife, and also touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, * * *.' In 1938, an amendment P.L.1938, Chap. 235 added the italicized language. The statute thus confers upon our courts the jurisdictional requirements to have enabled the court in the instant case to make the order complained of.

We concur in the reasoning of former Advisory Master Herr in Levy v. Levy, 9 A.2d 779, 17 N.J.Misc. 324, 326 (Ch.1939) and his statement as to the effect of R.S. 2:50--37, N.J.S.A., in his work on divorce, Vol. 1, Sec. 446, p. 564. In the Levy case complainant, who had been awarded $15 per week by a New York decree for her support and that of her child, sought alimony and maintenance in our courts, both pendente lite and permanent, for the child who lived with her in New York. Defendant had remarried and lived in New Jersey. Ad interim maintenance for complainant and the child was allowed in the sum of $15 weekly under R.S. 2:50--37, N.J.S.A. The court pointed out that until the 1938 amendment it was without jurisdiction to award a wife, who had received a decree of absolute divorce elsewhere than New Jersey, alimony and maintenance under R.S. 2:50--37, N.J.S.A. citing Hughes v. Hughes, 125 N.J.Eq. 47, 4 A.2d 288, (E. & A. 1939) decided before the 1938 amendment became effective. The holding in the Levy case (9 A.2d 781, 17 N.J.Misc. 324) was that the 1938 amendment was intended 'to enlarge the court's jurisdiction so as to enable it to make such awards in proper cases to former wives whose divorces have been secured abroad. * * * This enlargement of jurisdiction is in furtherance of the modern tendency to regard a cause of action for alimony or maintenance as complete in itself and independent of the cause of action for divorce, and as being essentially personal and transitory in its nature.' In Herr's treatise on divorce, in section 446 dealing with 'Children of parents divorced in foreign jurisdictions' he says 'Under this section (R.S. 9:2-1 (N.J.S.A.)) the child must be an inhabitant of the state, but, if he is not, the court, nevertheless, may take jurisdiction in an independent proceeding under section 2:50--37 of the Revision (N.J.S.A.).'

R.S. 9:2--1, N.J.S.A., does not limit or restrict R.S. 2:50--37, N.J.S.A. These two statutes can be reconciled. R.S. 9:2--1, N.J.S.A., was primarily passed to provide an additional remedy for the support of an infant child in a proceeding for determining the custody of infant children found within the state. It was intended to implement the general equity jurisdiction parens patriae. The cases referred to by appellant Hachez v. Hachez, supra; Brown v. Parsons, supra; In re Smith, supra; deal specifically with the single question of custody.

R.S. 9:2--1, N.J.S.A., provides a remedy irrespective of the domicile of the parents and while it also included a provision empowering the court to order support in the situation defined therein, no order of support can be made unless the defendant parent is served personally in the jurisdiction, because until the parent is thus brought into court there is no proceeding pending with respect to the question of support. White v. White, 65 N.J.Eq. 741, 745, 22 A. 739, (E. & A. 1903). On the other hand R.S. 2:50--37, N.J.S.A., deals with the situation where the infant children are not within the state but the defaulting parent is and has property with a situs in this state from which he can or should be made to contribute to the support of the children in accordance with the decree of another state final in nature or, if there be none such, then in accordance with the judgment of our courts as to what is reasonable and just in all the circumstances.

It is a proper deduction to conclude that motivating reasons for the enactment of the amendment of 1938, R.S. 2:50--37, N.J.S.A., were to effectuate the public policy of preventing this state from becoming a haven for defendants against whom decrees for support have been entered in foreign jurisdictions and to clear up any doubt with respect to the ability of our courts to grant relief by way of support after a foreign decree with respect thereto has been entered.

There is no common law duty for a parent to support a child, the duty is a moral one. Neither parent...