Isserman v. Isserman.

• Decision Date: 03 May 1946
• Docket Number: No. 208.,208.
• Citation: 46 A.2d 799
• Parties: ISSERMAN v. ISSERMAN.
• Court: New Jersey Supreme Court

46 A.2d 799

ISSERMAN

v.ISSERMAN.

No. 208.

Court of Errors and Appeals of New Jersey.

May 3, 1946.

Appeal from Court of Chancery.

Suit in equity by Grace Isserman against Abraham Isserman, for separate maintenance and support of the parties' minor son. From an order of Court of Chancery, 42 A.2d 642, 23 N.J.Misc. 174, abating allowance for support of plaintiff and minor son but directing decree and bill held until minor attains majority, plaintiff appeals.

Decree reversed.

Syllabus by the Court

.

When a case is tried in the Court of Chancery and there is a request for oral proof, with an opportunity to cross examine witnesses, it should be granted.

WELLS, Judge, dissenting.

Charles M. Grosman, of Newark, for appellant.

Milton M. Unger, of Newark, for respondent.

BODINE, Justice.

The appellant secured in this state, in the year 1927, a decree for separate maintenance. For several years, a weekly allowance of $45 was paid for her support and the support and education of an infant son. In February of 1943, the defendant claims he became a resident of the state of Nevada and instituted in that state an action for divorce.

Complainant filed an answer in that cause and sought by cross-complaint a divorce. The result of this proceeding was a final decree for absolute divorce granted to the defendant with provision for the support and maintenance of his wife and minor child. Thereafter, the defendant herein sought a modification of the final decree previously made in this state, and the complainant resisted the application on the ground that the Nevada decree was procured by fraud.

At the trial before the learned Advisory Master, complainant sought to take testimony in open court on the issue as to whether the defendant was in fact and in law domiciled in Nevada at the time the divorce in that state was procured. This application was denied and, we think, erroneously.

In the absence of a request for oral hearing the affidavits might have been used, but where the issue was bitterly disputed due process of law can best be satisfied if the issues had been determined on oral proof. Test v. Test, 131 N.J.Eq. 197, 24 A.2d 226; Lazarus v. Home Bldg. & Loan Ass'n, 133 N.J.Eq. 367, 32 A.2d 441. The opportunity to cross examine was denied to the appellant and this was a right to which she was entitled, unless some law, the existence of which has not been brought to our attention, provides otherwise. It may be that oral proofs may not change the result, but none the less orderly process requires its use.

The law in this class of cases seems to be settled as the facts in each instance may develope; hence, the importance of taking the proofs as required by law.

Mr. Justice Frankfurter said in Williams v. State of North Carolina (2d case), 325 U.S. 226 at page 230, 65 S.Ct. 1092, at page 1095, 89 L.Ed. 1577, 157 A.L.R. 1366: ‘It is one thing to reopen an issue that has been settled after appropriate oppotunity to present their contentions has been afforded to all who had an interest in its adjudication. This applies also to jurisdictional questions. After a contest these cannot be relitigated as between the parties. Forsyth v. [City of] Hammand, 166 U.S. 506, 517, 17...