Conwell v. Conwell.

• Decision Date: 23 June 1949
• Docket Number: No. M-4735.,M-4735.
• Citation: 67 A.2d 483
• Parties: CONWELL v. CONWELL.
• Court: New Jersey Superior Court

67 A.2d 483

CONWELL

v.CONWELL.

No. M-4735.

Superior Court of New Jersey, Chancery Division.

June 23, 1949.

Suit by Edith S. Conwell against John H. Conwell for an order compelling the defendant to provide suitable support and maintenance of child of the parties and for accrued payments under the Florida divorce decree with interest and costs. On plaintiff's application for an order requiring defendant to pay to plaintiff proper allowance for support and maintenance of child pending the litigation and a reasonable counsel fee and costs, and on the defendant's crossmotion to dismiss plaintiff's complaint.

Order in accordance with opinion.

Lorentz & Stamler, Newark, Fred A. Lorentz, Newark, for plaintiff.

Kristeller & Zucker, Newark, Saul J. Zucker, Newark, for defendant.

HEGARTY, A.M.

It appears from the pleadings thus far filed in this cause: that the plaintiff, Edith S. Conwell, now resident at Richmond, Virginia, and the defendant, John H. Conwell, now resident at Pines Lake, R.D. No. 1, Paterson, New Jersey, were married in 1938; that one child, Edith R. Conwell, was born of said marriage; and that said marriage was dissolved by final decree of a Florida Circuit Court on May 28, 1946. This final decree, in addition to granting an absolute divorce to the plaintiff, granted plaintiff custody of the minor child and ordered the defendant to pay the plaintiff $80 per month for the support of the child. It is further alleged that the defendant has failed to make any payments in compliance with this decree with the exception of one payment in the amount of $40 in June, 1946.

Plaintiff demands judgment on the First Count seeking an order compelling the defendant to provide suitable support and maintenance of the child, to make such provisions pendente lite, and to furnish reasonable security for such support. Plaintiff also seeks counsel fees and costs. By her Second Count, plaintiff demands accrued payments under the Florida decree amounting to $2,840, with interest and costs.

The matters presently before the court for consideration deal with plaintiff's application for an order requiring the defendant to pay to plaintiff a proper allowance for the support and maintenance of the infant child of the marriage, pending the litigation, for a reasonable allowance for counsel fees and costs to enable her to prosecute this action, and defendant's cross-motion to dismiss plaintiff's complaint.

Defendant by his cross-motion to dismiss the complaint has raised several questions of law which are discussed below.

First: Does this court have jurisdiction in its discretion to order the defendant to support the child, who is not an inhabitant of New Jersey? Defendant argues that R.S. 9:2-1, N.J.S.A., which provides for the support of minor children of divorced parents, is limited by its terms to children of this State and, therefore, this court does not have jurisdiction to grant such relief as the plaintiff seeks. He urges further that the terms of R.S. 9:2-1, N.J.S.A., must be construed to limit R.S. 2:50-37, N.J.S.A., which provides that

‘* * * after judgment of divorce, whether obtained in this State or elsewhere, the court 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 * * *.’

It appears, however, that the broad language just quoted as construed in Levy v. Levy, 9 A.2d 779, 782, 17 Misc. 324, (1939) forces a conclusion contrary to the defendant's contention. In that case, petitioner who had been awarded $15 per week by a decree of a New York court for her support and that of her child, sought in New Jersey alimony and maintenance both pendente lite and permanent for the child who lived in New York. In upholding the court's jurisdiction, former Advisory Master Herr said in part: ‘It was the legislative intent * * * to empower this court to see to it so far as possible that New Jersey shall no longer be a haven for ex-husbands who immigrate to this state in order to avoid their alimony obligations, finding here a substantially complete refuge.’

See also, Hughes v. Hughes, 12 A.2d 848, 18 N.J.Misc. 270 (1940). That in the Levy case alimony was sought in addition to support for the child hardly constitutes, although suggested by the defendant, an element distinguishing it from the instant case.

It is true that several earlier cases expressing the same view, Noel v. Noel, 193 A. 558, 15 N.J.Misc. 576, (1937) and Goodman v. Goodman, 194 A. 866, 15 N.J.Misc. 716, (1937) were disapproved in Hughes v. Hughes, 125 N.J.Eq. 47, 4 A.2d 288, (E. & A.1939). However, these cases were based on the former statute which lacked the amending phrase ‘whether obtained in this state or elsewhere’, and the later Levy case stands as authority for the proposition that this court has jurisdiction to grant such relief as is sought in the First Count of the plaintiff's complaint. Naturally the decision on this point comprehends the question of counsel fees and costs.

Second: Is the Florida decree entitled to recognition by this court under the full faith and credit clause of the Federal Constitution so as to permit plaintiff's second count for arrearages? Decisive of this issue is Sistare v. Sistare, 218 U.S. 1, 16, 30 S.Ct. 682, 54 L.Ed. 905, 910, 28 L.R.A., N.S., 1068, 20 Ann.Cas. 1061, (1910), discussed with approval in Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, 157 A.L.R. 163, (1944). The Sistare case involved the refusal of the Connecticut courts to recognize a New York alimony decree in an action brought for arrearages. The court held that such a decree is final, even though it is subject to prospective modifications, unless by the law of the original state it can be...