Gonzales v. Gonzales, Civil Action No. 7620.

• Decision Date: 28 March 1949
• Docket Number: Civil Action No. 7620.
• Parties: GONZALES v. GONZALES.
• Court: U.S. District Court — Eastern District of Pennsylvania

83 F. Supp. 496

GONZALES v. GONZALES.

Civil Action No. 7620.

United States District Court E. D. Pennsylvania.

March 28, 1949.

Edward Davis and LeRoy Comanor, both of Philadelphia, Pa., for plaintiff.

Benjamin H. Renshaw, Jr., of Philadelphia, Pa., for defendant.

FOLLMER, District Judge.

This is a suit for unpaid installments for support and maintenance allegedly due plaintiff and her three minor children by defendant under and in accordance with a decree of the Court of Chancery in the State of New Jersey under date of February 24, 1944. The case was tried before this Court without a jury.

On the basis of the pleadings and the testimony, I make the following special.

Findings of Fact.

1. The plaintiff is Helene A. Gonzales, a resident of the City and State of New York.

2. The defendant is John L. Gonzales, a resident of Bucks County, State of Pennsylvania.

3. On February 24, 1944, in Chancery of New Jersey 151/285, the court having jurisdiction of the parties ordered and decreed, inter alia, as follows:

"* * * that the defendant, John L. Gonzales do pay to the complainant, Helene A. Gonzales, or to her solicitor, David T. Wilentz, the sum of Sixty Dollars ($60.00) per week, or fifty percent (50%) of his net income, whichever is the larger, upon Tuesday of each and every week commencing on the 22nd day of February, 1944, and continuing until the further order of this Court, as and for the support and maintenance of herself and the infant children of said marriage in her custody.

"And it is further ordered and decreed that the custody of Thomas A. Gonzales, 3rd, age 11, and Andrea Marie Gonzales, age 4½, and Linda Anne Gonzales, age 1½, infant children of said marraige, be, and the same is hereby awarded to the complainant until the further order of this Court, and that defendant may have the right of reasonable visitation until the Court shall otherwise order.

* * * * * *

"And it is further ordered and decreed that the parties hereto be at liberty to apply to this Court for added or other relief or for a modification of the terms of this decree as the circumstances of the parties may require."

4. The action in Chancery of New Jersey was never reduced to a final money judgment.

5. Shortly after the New Jersey proceedings of February 24, 1944, plaintiff, with the three minor children, took up her residence in the City of New York, and defendant took up his residence in Bucks County, Pennsylvania.

6. Defendant paid plaintiff in accordance with the terms of the New Jersey order an aggregate of $5,042.50, leaving a balance due under the terms of that order as of February 22, 1947, in the sum of $4,317.50.

7. Defendant ceased making payments under the New Jersey order deliberately in an effort to enforce a modification of that order.

8. On March 4, 1947, Helene A. Gonzales brought an action for desertion and non-support against John L. Gonzales on behalf of herself and her minor children in Bucks County, Pennsylvania.

9. In the Bucks County proceeding the following colloquy took place between the court, the plaintiff, Helene A. Gonzales, and Counsel for plaintiff and defendant, referring to the decree of the Chancery Court in New Jersey,

"Mr. Biester: * * * In so far as the order part of that decree is concerned, not the rest of it, and not anything affecting custody of the children or anything else that may be in that agreement, but only in so far as it affects the order there made, Mrs. Gonzales is willing to, let's say, waive her rights under it during the pendency of the order that is made here.

"Judge Keller: I think that is as far as she ought to go.

"Mr. Biester: I don't think we will go any further—that while this order is in effect and being complied with that any rights she might have under that decree will be suspended.

"Mr. Renshaw: But in so far as that is concerned, there was only one thing I didn't quite understand. The District Attorney, as I understand it, said the order will be suspended as long as there is an order made in this?

"Judge Keller: The order as to the support.

"Mr. Renshaw: Now in so far as the custody of the children is concerned, under that order Mrs. Gonzales was—

"Judge Keller: It was adjudicated. That is not going to be touched by this Court.

"Mr. Kilcoyne: It isn't relevant to this proceeding anyway.

"Mr. Renshaw: In other words, it just affects the order in so far as the money is concerned?

"Judge Keller: The order of support.

"Mr. Renshaw: The order of support. Thank you, Your Honor.

"By Judge Keller

"Q. Is that understood, now, Mrs. Gonzales, that you are willing to have the order made in the Court of Chancery of New Jersey in an action between you, Helene A. Gonzales, Plaintiff, and John L. Gonzales, Defendant, 151/285, on Bill for Separate Maintenance, in so far as the order of support is concerned you are willing to have that suspended pending the order which may be made here? A. Yes, I am quite willing.

"Q. And so long as that order is complied with by the defendant? A. Yes sir."

10. On March 4, 1947, an order was entered by the Bucks County Court directing the said John L. Gonzales to pay for the support of his wife, Helene A. Gonzales, and their three children, Thomas A. Gonzales, 3rd, Andrea Marie Gonzales, and Linda Anne Gonzales, the sum of $30 per week.

11. On May 4, 1948, the Bucks County, Pennsylvania, order of March 4, 1947, was amended requiring the said John L. Gonzales to pay to the said Helene A. Gonzales the sum of $25.00 per week for the support of herself and their three minor children.

12. On May 24, 1948, on motion of John L. Gonzales, the Chancery Court of New Jersey ordered, inter alia, as follows,

"It is, thereupon, * * * ORDERED upon the consent below that the Order for support of said Helene A. Gonzales and the said three infant children entered in this Court in the above entitled matter be and is hereby suspended, as of and from the 4th day of March, 1947, until the further order of this Court; * * *."

This order was approved as to form by Counsel for Helene A. Gonzales.

13. Defendant moved to dismiss the action for the following reasons,

(a) Lack of jurisdiction over the subject matter and over the person.

(b) Because the New Jersey decree was then the subject of legal attack in that jurisdiction (referring here to motion of John L. Gonzales on which the order of the Chancery Court of New Jersey of May 24, 1948, was predicated).¹

14. The motion for dismissal came on for argument and was dismissed by order of court dated November 21, 1947.

15. The court in its order of dismissal held, inter alia,

(a) Helene A. Gonzales had in fact established an independent domicile and that diversity of citizenship is present in the instant case and this court has jurisdiction.

(b) The court does not lack jurisdiction on the ground that the subject matter of this suit is based upon an order for maintenance and support.

(c) An action for maintenance and support constitutes a civil proceeding and not a criminal or quasi-criminal proceeding.

(d) The decree of the Chancery Court in New Jersey although captioned "Final Decree" is not a final judgment for by its terms it is subject to modification.

(e) The plaintiff, Helene A. Gonzales, in the Bucks County action abandoned or waived her rights under the New Jersey decree only in so far as they relate to future payments for maintenance and support and that she did not intend to abandon her rights with respect to the maintenance and support which had already accrued under the provisions of the New Jersey Final Decree and which had not been paid; the court further held, however, that questions of waiver or abandonment were not properly subjects of a motion to dismiss but matters of defense to be raised at the trial of the cause.

16. No portion of the amount here sued upon has been reduced to judgment.

Discussion

The case is now before me on the merits. After hearing the testimony, I find myself in complete accord with the court in its order of dismissal as to the jurisdictional requirements of the suit. I am also of the opinion that in the Bucks County proceeding Helene A. Gonzales abandoned or waived her rights under the New Jersey decree only in so far as they related to future payments for maintenance and support and that she did not abandon her rights with respect to the maintenance and support which had already accrued under the provisions of the New Jersey decree and which had not been paid.

The testimony furthermore disclosed that subsequent to the order of dismissal, to wit, on ...