Hatch v. Hatch

• Decision Date: 13 May 1937
• Citation: 192 A. 241
• Parties: HATCH v. HATCH.
• Court: New Jersey Court of Chancery

192 A. 241

HATCH

v. HATCH.

Court of Chancery of New Jersey.

May 13, 1937.

Syllabus by the Court.

1. Court of Chancery has jurisdiction to revise custody order so as to effect change of custody of infant, although parties and infant have become domiciled and resident in another state, but will decline to exercise such reserved jurisdiction in absence of special circumstances.

2. Right to installments of alimony and maintenance under permanent order becomes vested as such installments accrue, and subsequent order of modification cannot operate retroactively to disturb such vested right.

Divorce suit by Ethel W. Hatch against Herbert Harriman Hatch, wherein the defendant filed a counterclaim and obtained a decree dismissing the plaintiff's petition and granting a divorce on his counterclaim. On defendant's application to modify the custody and maintenance order contained in the divorce decree nisi and to enjoin the plaintiff from prosecuting a pending suit in New York for recovery of arrearages thereunder.

Application denied.

John L. Ridley, of Jersey City, for petitioning defendant. Biro & Strell, of Newark, for petitioner.

HERR, Advisory Master.

Ethel W. Hatch filed her petition for divorce in this court on April 5, 1927. Defendant counterclaimed for divorce and was successful. Decree nisi was entered on October 11, 1928, dismissing the petition and granting a divorce to the defendant on his counterclaim. Final decree was entered accordingly on January 12, 1929.

There was included in the decree nisi an order awarding the custody of Vivian, one of the infant children of the marriage, to the petitioner, Ethel W. Hatch, subject to certain provisions for visitation, and providing that the defendant should pay petitioner the sum of $8 per week for the support and maintenance of the child.

The defendant alleges that petitioner has intentionally kept the child at Boston and at other places, whereby he has been substantially deprived of his rights of visitation as provided in the order, that she has alienated the child's affections from him, and that the welfare of the child as well as his own rights as parent require that he now be awarded her custody. He complains further that petitioner has brought suit against him in the courts of New York to recover unpaid installments under the maintenance provision of the order amounting to some $2,500, and prays that the order be modified to eliminate the maintenance provision, not only as to future but as to past-due installments, on the ground that under all of the circumstances it is inequitable that he be required to pay any money for the maintenance of his child beyond what he has already actually paid. He prays also for an order revising the original order by awarding the child's custody to him and for an order enjoining the petitioner from the further prosecution of her New York action.

The defendant's application presents in limine objections which in my judgment require the denial of his application for change of custody and for the retroactive elimination of the maintenance order, without respect to the merits of his contentions.

1. Change of custody. No question is raised as to the court's jurisdiction to make the original order. That order was included in the decree nisi, as an incident of the divorce, by virtue of the provisions of section 25 of the Divorce Act (P.L. 1907, p. 481 [2 Comp.St.1910, p. 2035, § 25]). Jurisdiction to make it was inherent in the court's jurisdiction to grant the decree of divorce, as defined by sections 6 and 7 of the Divorce Act (P.L.1907, p. 477 [2 Comp.St.1910, pp. 2030, 2032, §§ 6, 7]). Section 25 contains no provisions respecting domicil or residence, either of the child or of the parents. Where both of the parents, or only one of them, is domiciled in this state under the conditions prescribed by sections 6 and 7 at the time of instituting a suit for divorce, the court has jurisdiction to provide by order for the custody of children of the marriage although they may never have resided in New Jersey and although both of the parents may have become domiciled and resident elsewhere pending the suit.

The change in domicil and residence of the parties and of the child after the entry of the original custodial order does not affect the court's jurisdiction to entertain the present application. No change in the condition, residence, or domicil of the parties can take away a jurisdiction which has once attached. White v. White, 65 N.J.Eq. 741, 55 A. 739; Upton et al. v. New Jersey Southern R. Co., 25 N.J.Eq. 372; Dunn v. Clarke, 8 Pet. 1,8 L.Ed. 845; 15 C.J. p. 822.

The statute (section 25) provides that "* * * after decree of divorce, it shall be lawful for the court of chancery to make such order touching the * * * custody * * * of the children, or any of them, as the circumstances of the parties and the nature of the case shall be rendered fit, reasonable and just; * * * orders so made may be revised and altered by the court from time to time as circumstances may require." (Italics mine.) The statute creates a continuing jurisdiction. The physical removal of the child and its parents, their acquisition of domicil in New York, and the circumstance that they are thus beyond the reach of the process of this court are considerations which can have no effect upon the jurisdiction of this court to exercise the reserved and continuing power to change its determination defining the status of the child from time to time at the instance of either parent. Recognition of such changed determination will be given at least within this state. It is quite conceivable that occasions may arise where such recognition may prove of practical value and importance. The original order was by the express terms of the statute made subject to the possibility of future change. The petitioner received it with all the limitations and implications attaching thereto. She cannot now question the jurisdiction of the court to exercise the very power reserved in its original order in her favor, by which she has profited and which she has continued to enjoy. On any proper notice of application for a change, the petitioner is bound wherever she may be. Although she may not personally be within the jurisdiction of the court, the subject-matter is, so that any order revising the original order will be valid and binding upon her. White v. White, supra; Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518.

But the petitioner argues that, assuming the court's jurisdiction to revise its original order, it should refrain from so doing, not only because the evidence shows that it would be inequitable and unsuitable to order a change of custody (which it is unnecessary to pass upon), but because for practical reasons and out of considerations of comity and propriety the determination of such questions should be left with the courts of the State of New York, the state of the parties' present domicil and residence.

The jurisdiction conferred by section 25 is not mandatory on the court, but subject to the same discretion in its exercise as the court uses in the exercise of its inherent jurisdiction. The court "may" revise the original custody order "as circumstances may require." If the circumstances do not require the exercise of this court's reserved jurisdiction, therefore, such jurisdiction ought not to be exercised.

The outstanding and controlling circumstance in the case at bar is that both parents and the child have removed from this state and have all become domiciled and resident in the state of New York. That state is now primarily concerned with the domestic relations of the parties. There are no special circumstances shown which indicate that the domestic relations of these parties can be dealt with more effectively by this court than by the courts of New York. Practical considerations, as well as principles of propriety and comity, require that this court keep hands off. See In re Caruso's Guardianship, 101 N.J.Eq. 215, 218, 137 A. 154; Dixon v. Dixon, 72 N.J.Eq. 588, 591, 66 A. 597; Id., 76 N.J.Eq. 364, 74 A. 995; Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518; In re Erving, 109 N.J.Eq. 294, 301, 157 A. 161. See notes, 20 A.L.R. 815, 72 A.L.R. 441, 70 A.L.R. 526, 59 L.R.A. 177, 7 L.R.A.(N.S.) 306, 10 L.R.A.(N.S.) 690, 39 L.R.A.(N.S.) 988, L.R.A.1915B, 154. Also 2 Beale: Conflict of Laws (1935) p. 277; Goodrich: Conflict of Laws (Hornbook 1927) p. 305; Restatement, Conflict of Laws, § 144 et seq.

The defendant's application for a revision of the custodial order is therefore denied.

2. Revision of maintenance order. The defendant's application for modification of the maintenance order so as to cancel unpaid installments heretofore accrued thereunder must also be denied, for reasons quite distinct from the domiciliary situation. Whatever may be the nature of the jurisdiction exercised by this court in matrimonial litigation in awarding temporary maintenance for children (Cf. Wilson v. Wilson, 181 A. 257, 14 N.J.Misc. 33, 40), in contrast to its original parens patriae jurisdiction in custody cases (In re Erving, 109 N.J.Eq. 294, 297, 157 A. 161), the court has no inherent jurisdiction to compel a parent to provide for the maintenance of his child beyond the pendency of matrimonial litigation (Meier v. Planer, 107 N.J.Eq. 398, 402, 152 A. 246). In the law courts, see Freeman v. Robinson, 38 N.J.Law, 383, 20 Am.Rep. 399; and cf. Tomkins v. Tomkins, 11 N.J.Eq. 512, 517; Murphy, v. Murphy, 102 N.J.Eq. 552, 554, 141 A. 774. The order for the child's permanent support in this cause therefore must rest upon the statutory authorization contained in section 25 of the Divorce Act, which as amended in 1933, N.J.St.Annual 1933, § 62—25 (so far as the question under discussion is concerned the amendment does not change the previous statute) provides as follows:

"25. Pending a suit for divorce or nullity, or after decree of divorce, it...