Greenberg v. Owens

• Decision Date: 25 January 1960
• Docket Number: No. A--55,A--55
• Citation: 31 N.J. 402,157 A.2d 689
• Parties: Marcia GREENBERG, a minor by her Guardian ad litem, Leonard Greenberg, and Leonard Greenberg, in his own right, Plaintiffs-Appellants, v. Catherine OWENS and Richard Owens, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 402

31 N.J. 402

157 A.2d 689

Marcia GREENBERG, a minor by her Guardian ad litem, Leonard Greenberg, and Leonard Greenberg, in his own right, Plaintiffs-Appellants, v. Catherine OWENS and Richard Owens, Defendants-Respondents.

No. A--55.

Supreme Court of New Jersey.

Argued Dec. 8, 1959.

Decided Jan. 25, 1960.

Patrick J. McGann, Jr., Red Bank, for plaintiffs-appellants (Louis M. Drazin, Red Bank, attorney).

Frank P. Zimmer, Asbury Park, for defendants-respondents (Zimmer & Selikoff, Asbury Park, attorneys).

PER CURIAM.

We certified the plaintiffs' appeal from the Law Division's denial of their motion under R.R. 4:62--2 to vacate an order dismissing their complaint. The complaint was filed on May 27, 1954, alleging that on November 4, 1953 the plaintiff, Marcia Greenberg, was injured while a passenger in an automobile which was owned by the defendant Catherine Owens and negligently operated by the defendant Richard Owens. On the date alleged the plaintiff, Marcia Greenberg, was unmarried and 17 years of age, having been born on June 20, 1936. After pretrial the case was put on the military list as Richard Owens was in the armed forces. The plaintiff married Richard Owens on August 17, 1956. Thereafter, both defendants moved to dismiss the complaint on the ground that a wife could not sue her husband for a prenuptial tort. The plaintiff's affidavit opposing the motion stated that the defendant Richard Owens had instituted proceedings to annul the marriage, and that she would not contest his suit. The record does not disclose the disposition of the annulment action. Defendants' brief informs us that it was subsequently 'dropped.' On June 26, 1957 the trial court granted the defendants' motion and dismissed the action without prejudice and without costs to any of the parties. (But, as to the defendant Gatherine Owens, see Hudson v. Gas Consumers' Ass'n, 123 N.J.L. 252, 8 A.2d 337 (E. & A.1939). The plaintiffs did not appeal. In October 1957 the Appellate Divisiion ruled in another case that the marital disability to sue did not extend to prenuptial torts. Koplik v. C. P. Trucking Corp., 47 N.J.Super. 196, 135 A.2d 555 (App.Div.1957). Shortly thereafter, the plaintiffs made an application 'to re-open the Dismissal without prejudice heretofore granted,' which was refused, and they did not appeal. Later, this court reversed the Appellate Division's decision in Koplik and held that marriage of the parties bars the prosecution of an action based on a prenuptial tort. 27 N.J. 1, 141 A.2d 34 (1958). In January 1959 the defendant Richard Owens obtained a divorce from the plaintiff, Marcia Greenberg, in the State of Florida, and on February 27, 1959 the plaintiffs moved to vacate the 1957 order dismissing their complaint. The Law Division refused to grant the motion to vacate the order on two grounds. The first was that the change in relationship between the parties as a result of the divorce was insufficient to justify a vacation of the order. The second was that the cause of action was extinguished by the marriage, and thus could not be revived by the divorce.

We do not reach the substantive question raised by this appeal, namely, whether divorce revives an action for a prenuptial tort which was barred by the marriage of the parties. For regardless of the answer, we must affirm the trial court's refusal to grant the plaintiffs' motion under R.R. 4:62--2 to reopen their case.

We recently had occasion to examine R.R. 4:62--2 in Hodgson v. Applegate, 31 N.J. 29, 155 A.2d 97 (1959). We said there that a motion under that rule is addressed to the sound discretion of the trial court, guided by equitable principles, and that the trial court's decision will be upheld absent an abuse of discretion. The rule is designed to afford a remedy in the rare situation in which for some quitable reason a judgment or order pronounced by a competent court should not be enforced. There are six listed grounds for relief. The plaintiffs may not invoke grounds (a), (b) or (c), as the motion was made more than one year after the order from which they seek to be relieved and, in any event, these provisions do not cover this kind of case. Nor may they rely on grounds (d) or (e), which obviously cover situations completely unlike that present here. Only ground (f), 'any other reason justifying relief,' may be available.

The order sought to be vacated was the original order dismissing the plaintiffs' action after Marcia Greenberg's marriage to the defendant Richard Owens. It was an order expressly made without prejudice, and therefore its existence was no bar to any subsequent proceedings the plaintiffs might decide to institute. The case before the trial court was this: Plaintiffs whose suit had once been ordered dismissed without prejudice were seeking to reinstate the suit by obtaining relief from the order of dismissal. The order of dismissal did not preclude them from bringing another action here or elsewhere. The grounds for relief from the order of dismissal were that the relationship between the parties had altered after the order was made. There was no allegation that the order was erroneous or inequitable. Nor was there an allegation that the operation of the order worked an unjust hardship on the plaintiffs because of the change in the relationship between the parties, as indeed it did not, since it did not bar a new action. The application was not on notice to the defendant himself, but rather to his original counsel. Both counsel asserted at the oral argument that the present whereabouts of the defendant are unknown. If the matter had been reopened, the action would then have proceeded against a person who left this jurisdiction with the correct understanding that the action had terminated. In these circumstances, we can see no reason to reverse the Law Division's refusal to vacate the order of dismissal.

We express no opinion on the questions whether the parties' divorce has ended the marital disability to sue; whether relief could have been granted if the original order of dismissal had been with prejudice, or whether the change of relationship here involved is ever a proper ground for relief under R.R. 4:62--2.

The judgment of the Law Division is affirmed.

Page 412

For affirmance: Chief Justice WEINTRAUB and Justices BURLING, FRANCIS and PROCTOR--4.

For reversal: Justices JACOBS and SCHETTINO--2.

JACOBS, J., joined by SCHETTINO, J. (dissenting).

On November 4, 1953 the plaintiff Marcia Greenberg was injured while she was a passenger in an automobile driven by the defendant Richard Owens and owned by his mother, the defendant Catherine Owens. Alleging that her injuries resulted from the negligence of Richard and his mother, Marcia and her father, Leonard Greenberg, filed a complaint seeking recovery of medical and related expenses and damages for pain and suffering. Answers were filed by the defendants and a pretrial order was entered. Trial of the matter was delayed because Richard was in the armed forces of the United States and affidavits were filed from time to time by counsel for the defendants certifying that Richard's military service continued. On or about March 11, 1957 the defendants moved to dismiss the complaint on the ground that Marcia had married Richard while the action was awaiting trial. The plaintiffs resisted this motion and filed an affidavit which pointed out that at the time of the accident and the institution of the action, Marcia was unmarried and that, although she had married Richard on August 17, 1956, she had on January 5, 1957 been served with a summons and complaint in an annulment proceeding which Richard had instituted and which she would not contest. Notwithstanding the foregoing, the trial court entered an order on June 26, 1957 dismissing the entire action by both plaintiffs against both defendants, without prejudice, and on November 13, 1957 it refused to reopen the dismissal.

Richard moved to the State of Florida and on January 7, 1959 he obtained a decree of divorce. On or about February 18, 1959 the plaintiffs served notice upon counsel for the defendants that they would apply to reopen the order of dismissal on the ground that the marriage between Marcia and Richard had been legally terminated. An affidavit by Marcia set forth that Richard was still a resident of Florida although she was not certain as to his exact whereabouts; and during his argument before the trial court in support of his application, counsel for the plaintiffs stated that he would have instituted a new action had he been able to ascertain Richard's address and that he thought that Richard was secreting himself. In opposing the application, counsel for the defendants did not tender Richard's address nor did he question the propriety of the service of the application to reopen upon him as counsel for both defendants. See Langrick v. Rowe, 32 N.Y.S.2d 328, 337 (Sup.Ct.1941), affirmed 265 App.Div. 793, 41 N.Y.S.2d 82 (1943), affirmed 291 N.Y. 756, 52 N.E.2d 964 (1943). Indeed, during oral argument before us, he stated that he had been retained by the defendants' insurance carrier and that he considered himself fully authorized to appear on behalf of both defendants. He did not contend that the defendants had taken any steps in reliance on the supposed finality of the order of dismissal or that they would suffer any material prejudice by the reopening; on the contrary, he rested on the position that the dismissal was legally proper, that nothing had been shown to warrant its reopening, and that the plaintiffs were still at liberty to institute a new action. Although there was discussion as to the New Jersey statute of limitations (N.J.S. 2A:14--1 et seq., N.J.S.A.), counsel for the defendants did not suggest that the statute of limitations in Florida had not already barred such new action (see F.S.A. § 95.11; Slaughter v. Tyler, 126 Fla. 515, 171 So. 320 (1936); Manning v. Serrano, 97 So.2d 688 (Fl...