Greenberg v. Greenberg
| Decision Date | 11 June 1926 |
| Docket Number | No. 58-313.,58-313. |
| Citation | 133 A. 768 |
| Parties | GREENBERG v. GREENBERG. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Suit by Frieda Greenberg against Fred Greenberg for divorce. On application of the defendant to restrain proceedings for alimony. Judgment for the petitioner.
Hirsehberg & Rubenstein, of Hoboken, for applicant.
Charles Stenberg, of Weehawken, for respondent.
WALKER, Ch. By order of reference filed herein July 28, 1925, this cause was referred to a special master to ascertain and report as to the truth of the allegations of the petition and his opinion thereon, and that the petitioner proceed to take depositions and other evidence before the said special master to substantiate and prove the allegations in said petition and to bring on the hearing of the cause ex parte, and that he do return, together with his report and as part thereof, such depositions and other evidence as may be taken before him in pursuance of that order. The petition alleged the marriage of the parties, the cause of action for divorce and the residence of the petitioner, and prayed a dissolution of the marriage, "and that the defendant may be compelled by the decree of this honorable court to support her and the said infant child of the marriage, and that she may be awarded the custody of said child," etc.
It is not necessary for a wife to plead in a petition for divorce that she is entitled to alimony. She may obtain it by a prayer in that behalf, and, when she so prays, rule 262 operates upon the situation. That rule provides that whenever a wife who petitions for divorce prays for alimony for herself and for maintenance of the children of the marriage, or both, and the defendant has been served with process within this state but failed to answer the petition, a reference shall be made to a special master, who shall, if requested by the petitioner, take testimony respecting the needs of the wife and children and the faculties of the husband, and shall in his report, recommend what, in his judgment, is a proper sum that the husband should pay to the wife for alimony and for maintenance of the children; provided that before such inquiry is made the master shall give five days' notice to the defendant of his sitting to take such testimony.
On October 19, 1925, the special master's report was filed, and in it he certified that all of the material facts charged in the said petition were true, and that a decree of divorce should be granted to the petitioner. Thereafter, and on December 9, 1925, a decree of divorce nisi was filed and entered in the cause. The petitioner, however, pending the reference, failed to request the master to take testimony respecting the needs of the wife and child and the faculties of the husband, and, consequently, the master did not give notice to the defendant of his sitting to take such testimony. But after the entry of the decree nisi the petitioner requested the master to give the notice required by rule 262, which he did, and, upon its return, counsel for defendant appeared before the master and objected to his proceeding with the matter because of the entry of the decree nisi, after which he had no legal right to deal with the question of alimony; also, that on July 6, 1925, this court made an order compelling the defendant to pay petitioner the sum of $2,687 in full satisfaction of any and all claims for present and future alimony by and on her behalf. Thereupon the master determined not to proceed with the consideration of the application for alimony until the right to do so should be decided by this court. An order was then made requiring the defendant to show cause why she should not be permanently restrained from pursuing her pending application for alimony before the special master, or before any other member of this court. And now, on the return of the order to show cause, the questions have been submitted to the court for decision:
First, as to the proceedings before the master: A master's authority as to the subjects and extent of his examination and report is limited and controlled by the order of reference. Stonington Savings Bank v. Davis, 15 N. J. Eq. 30. And he must confine his inquiry to the directions of the order of reference. Wycoff v. Combs, 28 N. J. Eq. 40, 41. While the order of reference in this case did not in terms include a direction to the master to ascertain and report what, in his judgment, was a proper sum the husband should pay to the wife for alimony and for maintenance of their child, yet such a direction was within the purview of the reference by virtue of rule 262 and the inveterate practice of the court. But this power could only be exercised by the master if it were invoked by the request of the petitioner and notice to the defendant. Furthermore, when the master filed his report, his duties and his powers were concluded; no further power or duty resided in him with reference to the case, and could only have been devolved upon him by a subsequent order of reference. This is so obviously true that citation of authority to support the proposition would be entirely superfluous. When a master is ordered to inquire and report, and he flies his report, he cannot afterward recall the case to himself, take further proceedings and make supplemental report. He can act again only by virtue of a re-reference to him.
All further proceedings before the master under the order of reference heretofore made herein will be perpetually restrained.
Secondly, the broader question as to whether the petitioner should be enjoined from proceeding before any member of the court for the collection of alimony for her support, and for maintenance of the child of the parties to this suit, by reason of the fact that this court on July 6, 1925, made an order compelling the defendant to pay the petitioner the sum of $2,687 in full satisfaction of any and all claims for present and future alimony by and on behalf of the petitioner: The order, however, contained this significant provision: That the sum mentioned ($2,687) should not preclude the petitioner from continuing with her application (whatever it might have been) for an order requiring the defendant to support and maintain the infant child of the parties; and, too, the order recites that upon application for it the solicitors of both parties, and the petitioner personally, appeared, and that she expressed her complete willingness to accept the sum ($2,687) in lieu of her right to any present or future alimony for her support and maintenance. The law on the subject of alimony in gross has been...
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