Hudson v. Hudson

• Decision Date: 19 February 1962
• Docket Number: No. A--35,A--35
• Citation: 178 A.2d 202,36 N.J. 549
• Parties: Marion HUDSON, Plaintiff-Respondent, v. Dannie Benjamin HUDSON, Defendant-Appellant, and Frances Costello Hudson, Intervenor-Appellant.
• Court: New Jersey Supreme Court

Page 549

36 N.J. 549

178 A.2d 202

Marion HUDSON, Plaintiff-Respondent, v. Dannie Benjamin HUDSON, Defendant-Appellant and Frances Costello Hudson, Intervenor-Appellant.

No. A--35.

Supreme Court of New Jersey.

Argued Dec. 18, 1961.

Decided Feb. 19, 1962.

A. Howard Finkel, Newark, for plaintiff-respondent (Henry Goldhor, Newark, attorney).

Morris N. Hartman, Elizabeth, for defendant-appellant and intervenor-appellant.

The opinion of the court was delivered by

FRANCIS, J.

Plaintiff Marion Hudson sought a judgment for arrearages of alimony due from her former husband, Dannie Hudson, under a divorce decree she obtained in the State of Alabama on October 9, 1958. In attempting to avoid payment, defendant contended that the divorce was obtained by fraud, that the separation agreement between the parties fixing the alimony payments, which was incorporated in the decree, was void as against public policy, and that the award for periodic payments of alimony being modifiable by the courts of Alabama did not have such quality of finality as would permit a New Jersey court to allow recovery for the sum of the arrearages. The Chancery Division rejected these defenses and entered judgment for $750, representing the amount in default when the complaint herein was filed.

Subsequent to the divorce, Dannie Hudson married his present wife, Frances Costello Hudson since which time they have lived together in Irvington, New Jersey. She intervened in this action seeking a declaration respecting the validity of her marriage. Upon determining in the main case that the Alabama decree was valid and entitled to full faith and credit, the trial court dismissed her complaint. Defendant sought a review in the Appellate Division, but we certified the matter before hearing there.

It was indicated at the oral argument that a further aspect of the litigation between plaintiff and defendant remains undecided. Defendant asserts he took the position below that even if the divorce decree was valid and the arrearages sufficiently final to warrant judgment, his circumstances as well as those of his former wife have so changed since the Alabama divorce that the Chancery Division, having jurisdiction of the parties, should reduce the weekly allowance of alimony. That such issue was presented is not at all clear from the record before us, although the pretrial order does say that the validity of the Alabama decree and of the claim for arrearages is to be determined first, and other questions reserved. In any event, in order not to interfere at this late date with the plan pursued by the parties with the consent of the trial court, upon resolution of the issues presented to us, we shall order a remand for completion of the undecided matter. It must be noted, however, that we do not approve of piecemeal adjudication of controversies. Our rules (with a narrow exception, not applicable here; see R.R. 4:55--2) prohibit direct appeal unless final judgment has been entered disposing of all issues as to all parties. R.R. 1:2--1; 2:2--1. Consent of counsel cannot supply a basis for violation of the rule.

At the outset of our consideration of the appeal, it should be noted that at the oral argument defendant abandoned his attack on the portion of the decision below which adjudged the Alabama divorce decree valid and required full faith and credit to be given to it. Therefore, the issues submitted for our determination are (1) legality of the pre-divorce separation agreement, and (2) whether the alimony arrearages under the foreign decree have sufficient finality to form the basis for a judgment in New Jersey. Their solution requires a short factual statement.

Plaintiff and defendant were married on August 9, 1950. One child, a daughter, was born of the marriage. At the time of separation their marital home was in Staten Island, New York. On September 30, 1958, while living apart, they executed an agreement in New York State, under which the husband agreed to pay the wife $50 a week for her support and $20 additional for the child. Both parties were represented by counsel at the time and the wife acknowledged in the contract that she had received the independent advice of her own attorney. The agreement provided among other things:

'8. In case the parties are hereafter divorced by decree of any court, the terms and provisions of this Agreement shall be incorporated in such decree and become a part of such decree, and this Agreement shall survive such decree. Notwithstanding such incorporation this Agreement shall not be merged in such decree, but shall survive the same and shall be binding and conclusive on the parties for all time. Each party agrees to submit to the in personam jurisdiction of any court in which the other party commences an action for divorce and to appear personally in any such action.

9. Each party will, at any time and from time to time, execute and deliver any or all other instruments or papers that the other party may reasonably require to give effect to the provisions of this Agreement.'

Thereafter, plaintiff went to Alabama and instituted suit for dissolution of the marriage. Defendant voluntarily entered an appearance in the action. The divorce was granted, the separation agreement was incorporated in the decree in accordance with the stipulation set forth above, and the parties were ordered to 'abide by and carry out' its terms with respect to support. The decree recited also that the agreement was merged therein but survived as an independent compact.

Defendant now contends that the separation agreement, particularly as respects support money, was contrary to public policy and therefore void. More specifically, he claims that the purpose of the contract was to promote or facilitate or to buy and sell consent to a divorce. The basis for the assertion is the clause therein binding each party 'to submit to the In personam jurisdiction of any court in which the other party commences an action for divorce and to appear personally in any such action.'

The trial judge declined to consider the legal sufficiency of the argument. He pointed out that defendant had voluntarily submitted to the jurisdiction of the Alabama court and had made no challenge there either to the validity of the separation agreement or to its inclusion in the divorce decree as the basis for adjudication of the matter of liability for support. And having found the decree to be unimpeachable and entitled to full faith and credit in New Jersey, he held that determination encompassed the entire foreign judgment, not just the portion relating to the dissolution of the marriage. That holding was sound. Hudson had the same opportunity to contest the support settlement in Alabama as he did the divorce itself. His failure to oppose inclusion of the agreement in the decree or to litigate the issue whether the provision for support represented a fair and equitable disposition of the problem, bars the attack he now attempts to make on it in New Jersey. See Woodhouse v. Woodhouse, 20 N.J.Super. 229, 238, 89 A.2d 707 (App.Div.1952), affirmed 11 N.J. 225, 94 A.2d 301 (1953); id. 17 N.J. 409, 111 A.2d 631 (1955); Graham v. Hunter, 266 App.Div. 576, 42 N.Y.S.2d 717 (App.Div.1943).

In any event, defendant's charge that the agreement is contrary to public policy because designedly promotive of divorce, is without merit.

Agreements between separated spouses, executed voluntarily and understandingly for the purpose of settling the pressing problem of support for a wife and children, are not Per se illegal. Experience has shown that disputes over Quantum of maintenance and other monetary controversies frequently constitute the bitterest element of matrimonial litigation. Consequently it may be said that rather than frown upon agreements in that area, the law encourages them. So long as the accord is reached without fraud or duress or imposition, and represents a fair and equitable allowance of alimony or support money, it carries the Imprimatur of legality. Woodhouse v. Woodhouse, 20 N.J.Super., supra, at p. 238, 89 A.2d 707; 1 Nelson, Divorce and Annulment (2d ed. 1945) § 13.17, 13.23; 6 Williston on Contracts (Rev. ed. 1938) § 1743. In fact, this court less than two years ago departed from previously existing precedent and declared that such agreements may be made the subject of an order for specific performance. Schlemm v. Schlemm, 31 N.J. 557, 158 A.2d 508 (1960). A compact of that nature does transgress public policy, however, and becomes unenforceable when it is a device to promote a divorce between the parties. Staedler v. Staedler, 6 N.J. 380, 389, 78 A.2d 896 (1951); Nelson, supra, § 13.22.

The rules just stated as the law of New Jersey are equally applicable in New York, where the challenged agreement was made and by the law of which its validity must be determined. Staedler v. Staedler, supra, at p. 389, 78 A.2d 896; Meyer v. Meyer, 124 N.J.Eq. 198, 1 A.2d 4 (Ch.1938); Hettich v. Hettich, 301 N.Y. 447, 95 N.E.2d 40 (Ct.App.1950); In re Rhinelander's Estate, 290 N.Y. 31, 47 N.E.2d 681 (Ct.App.1943); Schley v. Andrews, 225 N.Y. 110, 121 N.E. 812 (Ct.App.1919); Roberts v. Roberts 206 Misc. 779, 134 N.Y.S.2d 877 (Sup.Ct.1954); Fuqua v. Fuqua, 86 N.Y.S.2d 245 (Sup.Ct.1949); In re Estate of Nichols, 201 Misc. 922, 107 N.Y.S.2d 311 (Surr.Ct.1951).

Examination of the written accord does not support the charge that it is or was intended to be promotive of divorce. The support payments are not contingent upon the seeking or procurement of such a judgment. There is nothing in the language suggesting that either spouse consented to a divorce, or agreed not to contest a suit brought by the other to obtain one. Both parties remained fully free to seek a divorce or refrain from doing so, or to contest such action if commenced by the other. The mutual stipulation that a general appearance would be entered in any jurisdiction where a divorce action might be instituted...