Higginbotham v. Higginbotham

• Decision Date: 20 July 1966
• Docket Number: No. A--44,A--44
• Citation: 92 N.J.Super. 18,222 A.2d 120
• Parties: Sarah E. HIGGINBOTHAM, Plaintiff-Appellant, v. Edward Hughes HIGGINBOTHAM, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 18

92 N.J.Super. 18

222 A.2d 120

Sarah E. HIGGINBOTHAM, Plaintiff-Appellant, v. Edward Hughes HIGGINBOTHAM, Defendant-Respondent.

No. A--44.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 7, 1966.

Decided July 20, 1966.

John G. Dluhy, Clifton, for appellant (Mervyn R. Montgomery, Clifton, on the brief).

Herbert A. Vogel Morristown, for respondent (Lieblich & Cole, Paterson, attorneys).

Before Judges GOLDMANN, FOLEY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The Chancery Division judge refused to enforce the provision of a valid Florida divorce decree directing that defendant convey to plaintiff, as lump sum alimony, his interest in certain Clifton, N.J., real estate, and this on the authority of Bullock v. Bullock, 52 N.J.Eq. 561, 30 A. 676, 27 L.R.A. 213 (E. & A.1894), affirming 51 N.J.Eq. 444, 27 A. 435 (Ch.1893), as well as Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909). We reverse.

I

The parties were originally residents of New Jersey where they conducted an insurance agency as equal partners. By dint of their joint efforts they acquired by the entireties two duplex dwellings in Clifton. The Higginbothams eventually sold their business, moved to Florida, and set up another agency there. After a time plaintiff instituted an action in the Florida Circuit Court seeking a divorce, an accounting of the insurance business and other assets, distribution of all jointly held property, and permanent alimony. Defendant was duly served, appeared by his attorney, and actively participated in the proceedings. The court granted plaintiff an absolute divorce. It found the defendant was without income to make periodic alimony payments and that all property, whether held by him individually, jointly with plaintiff, or by the entireties, had been acquired by the parties during coverture and through the wife's contribution of time and effort. Accordingly, the court granted her, as lump sum alimony, costs and counsel fee, all of defendant's right, title and interest to the Clifton realty and the furniture and fixtures therein. He was ordered to convey the property within three days of the decree. A writ of Ne exeat, previously issued to assure defendant's presence in the Florida jurisdiction, was to remain in effect pending his compliance with the decree. The Florida court further found that defendant was delinquent in paying plaintiff half the monthly income of the insurance venture, as directed by previous orders, and accordingly ordered such payments to be made forthwith or he would be jailed for contempt.

Instead of conveying the Clifton property and making the payments as directed, defendant fled the State of Florida and returned to New Jersey, where he took possession of one of the basement apartments at the Clifton premises. The Florida court then appointed a special master who, at its direction and in order to carry out the final decree, executed and delivered to plaintiff a master's deed to the Clifton property. She immediately thereafter returned to New Jersey where she instituted the present action and obtained personal service on defendant.

In her original complaint (first count) plaintiff alleged that she was the owner of the Clifton realty and its furniture and fixtures, by reason of the Florida proceedings. She demanded judgment determining the rights of the parties and declaring that she had fee simple title to the real property subject to an existing mortgage. The second and third counts respectively demanded judgment of possession and damages. Defendant answered, admitting that the Florida decree was valid insofar as the divorce was concerned; that he had left that state in violation of the orders of its court, but that his violation was not improper insofar as the Clifton property was concerned because the Florida court had no jurisdiction thereof and therefore its decree was of no force and effect in ordering the conveyance. By way of counterclaim defendant demanded partition of the property.

Plaintiff was then granted leave to file an amended complaint, the order being consented to by defendant. The amended complaint set up four additional counts. The first (denoted as 'fourth count') alleged that the Florida decree was entitled to full faith and credit and demanded that the Chancery Division order defendant to convey to plaintiff all of his right, title and interest in the real and personal property in question, and that she have such other and further relief as might be appropriate in the circumstances. Similar relief was demanded under the fifth count, alleging that the Florida court had In personam jurisdiction over defendant and that he was now estopped from questioning the validity of any part of the decree; under the sixth count, charging that defendant, by leaving Florida in violation of the decree of that state, had perpetrated a fraud upon its courts and upon plaintiff; and under the seventh count, stating that the Florida decree was final and not subject to modification, and that plaintiff was seeking the aid of our court to enforce that decree under its general equity powers or, in the alternative, under N.J.S. 2A:34--23, N.J.S.A., the alimony statute.

The amended complaint was accompanied by plaintiff's motion for summary judgment, supported by affidavits. The motion was opposed by defendant. In a filed opinion the trial judge noted that defendant admitted the Florida decree was final and not subject to recall or modification: no appeal had been taken within 60 days, as required by Fla.Stat.Ann., § 59.08. And there could be no question as to the jurisdiction of the Florida court over the parties. He therefore held that plaintiff was entitled to the furniture in the Clifton property as well as an accounting for half the profits of the Florida agency for the period stated in the Florida decree, the amount to be determined at a later hearing. As to these items, he said, there was no genuine issue of material fact and plaintiff was entitled to judgment as a matter of law.

The trial judge, however, held that the real property presented a different problem. He reviewed the United States Supreme Court decision in Fall v. Eastin, above, and then went on to consider the Bullock case, which he viewed as determinative and binding upon him. He went on to observe that if plaintiff needed alimony, defendant was within the jurisdiction and she could apply to the Matrimonial Division under N.J.S. 2A:34--23, N.J.S.A. Deeming there was no just reason for delay in the entry of final judgment, R.R. 4:55--2, he entered judgment in plaintiff's favor on the issue of the personalty, and in defendant's favor as to the real property.

Before proceeding to a consideration of the main issue, it should be noted that prior to oral argument we were informed by defendant's attorneys that they were unable to locate their client. His employer had advised them that he had separated from service and, in all probability, left the State. Counsel felt there should be some representation of defendant's side of the important issue before the court and offered to file copies of the brief submitted on his behalf in the Chancery Division. We permitted the filing as well as oral argument.

Defendant advances a single contention, based on Fall v. Eastin and Bullock, namely, that the Florida court's attempt to exercise jurisdiction over real property located in New Jersey was a usurpation of authority, utterly void, and not entitled to full faith and credit in the courts of this State.

II

Bullock, upon which the trial judge relied, cannot be considered binding authority because the court there was hopelessly divided.

Mrs. Bullock had brought an action in the courts of New York for absolute divorce. The husband was personally served and appeared. The decree went in the wife's favor, dissolving the marriage and granting her $100 alimony a month, payment by defendant to be secured by a mortgage upon his lands in New Jersey in such form as the court should subsequently direct and approve. A subsequent order directed the husband to execute and deliver the mortgage, but he failed and refused to do so. Instead, he executed various mortgages and conveyances affecting the lands in question, without consideration and with the fraudulent purpose of defeating her rights. Mrs. Bullock thereupon filed a bill of complaint in our former Court of Chancery for the purpose of enforcing the decree and order of the New York court, claiming that she had thereby acquired an equitable lien on the New Jersey lands which stood prior to the lien and interest of her husband's mortagees and grantees. She prayed for a decree setting aside those mortgages and conveyances and that Bullock be directed to execute and deliver the mortgage as directed by the New York court. There was a general prayer for other and further relief.

Bullock moved to dismiss the bill, principally because complainant sought specific performance of a decree of another state which had no jurisdiction over the lands in New Jersey. The vice-chancellor dismissed the bill, 51 N.J.Eq. 444, 27 A. 435 (1893), and an appeal followed.

Justice Magie wrote an opinion in which he was joined by two of his associate justices and two of the judges specially appointed. 52 N.J.Eq. 561, 30 A. 676 (1894). He said that the New York court was without power to affect by its decree lands in another state, for 'no principle is more fundamental or more thoroughly settled that that the local sovereignty * * * can alone adjudicate upon and determine the Status of lands and immovable property within its, borders, including their title and its incidents and the mode in which they may be charged or conveyed.' Any concession as to the jurisdiction of the New York court would therefore have to be considered as limited to a jurisdiction to proceed In personam and not to extend to a determination or decree In rem. (at page 565, 30 A....