Hiers v. Hiers

• Decision Date: 07 January 1943
• Docket Number: No. 202.,202.
• Citation: 29 A.2d 615,132 N.J.Eq. 610
• Parties: HIERS v. HIERS.
• Court: New Jersey Supreme Court

29 A.2d 615

132 N.J.Eq. 610

HIERS

v. HIERS.

No. 202.

Court of Errors and Appeals of New Jersey.

Jan. 7, 1943.

Syllabus by the Court.

Held, a wife who causes a proceeding to be instituted in the Juvenile and Domestic Relations Court under the Disorderly Persons Act, resulting in an order for the payment by her husband to the Chief Probation Officer of a monthly sum for her maintenance and that of the children of the marriage, is not thereby precluded from filing a bill for separate maintenance in the Court of Chancery while the order of the Juvenile and Domestic Relations Court is still in effect.

PARKER, CASE, and BODINE, Justices, and RAFFERTY, Judge, dissenting.

Appeal from Court of Chancery.

Suit by Alice F. Hiers against Charles H. Hiers for separate maintenance. From a decree dismissing the bill, the complainant appeals.

Reversed and remanded.

Edison Hedges, of Altantic City, for appellant.

William Charlton, of Atlantic City, for respondent.

DONGES, Justice.

This is an appeal from a decree of the Court of Chancery dismissing complainant-appellant's bill for separate maintenance filed June 6, 1941. The bill was dismissed on motion before hearing on the ground that complainant, by seeking and getting an order for support in the Atlantic County Juvenile and Domestic Relations Court, on May 6, 1938, which order was reduced on March 11, 1941, lost any right she had to apply to the Court of Chancery for support. In so holding, we conclude that the learned Advisory Master was in error.

The Advisory Master felt bound by two cases in the Court of Chancery. Roarke v. Roarke, 77 N.J.Eq. 181, 75 A. 761, and Zanzonico v. Zanzonico, 186 A. 779, 14 N.J.Misc. 674. These cases support the contention that a wife who proceeds in the law court makes an election of remedies and thereafter may not apply to the Court of Chancery while the order is in effect.

A reading of the statutes providing for relief in the Domestic Relations Court clearly indicates that the purpose of the relief to be had there is to prevent deserted wives and children from becoming public charges. Indeed, in the instant case, the order provided for payment of the amount awarded to the Chief Probation Officer of the County of Atlantic. R.S. 44:1-143, N.J.S.A. 44:1-143, provides that the Overseer of the Poor may apply to the court for support of a needy, neglected family. R.S. 2:204-5, N.J.S.A. 2:204-5, provides that in lieu of the statutory penalty the court may require the husband to make weekly payments to the Overseer of the Poor. In Carney v. Carney, 119 N.J.L. 5, 194 A. 139, Mr. Justice Parker, for this court, posed the question whether or not the overseer was a necessary party to such a proceeding. In Coffey v. Coffey, 125 N.J.L. 205, 14 A.2d 485, the Supreme Court held that the making of the complaint by the Overseer of the Poor was a jurisdictional requisite under the last mentioned statute.

In the instant case, as stated, it was held that there was an election of remedies and we shall confine the determination to that question.

In order to hold that there was an election of remedies or that the determination in the Domestic Relations Court in res judicata there must be similarity of relief to be granted and of the grounds which would entitle a wife to relief. In Tremarco v. Tremarco, 117 N.J.Eq. 50, 174 A. 898, 95 A.L.R. 231, it was said: "The doctrine is not applicable in the present case for the reason that the remedy here sought by the appellant is not inconsistent with the earlier case, but for the further relief which the courts of this state alone could give."

The proceedings are entirely different. As stated, the primary purpose of the proceeding in the law court is for the protection of the public. The relief is granted only when there is need. Mere subsistence...