O'Loughlin v. O'Loughlin

• Decision Date: 08 January 1951
• Docket Number: A--39,Nos. A--38,s. A--38
• Citation: 6 N.J. 170,78 A.2d 64
• Parties: O'LOUGHLIN v. O'LOUGHLIN.
• Court: New Jersey Supreme Court

Page 170

6 N.J. 170

78 A.2d 64

O'LOUGHLIN v. O'LOUGHLIN.

Nos. A--38, A--39.

Supreme Court of New Jersey.

Argued Nov. 13, 1950.

Decided Jan. 8, 1951.

Thomas J. Brogan, Jersey City, argued the cause for appellant, Harry Cohn, Newark, attorney.

Saul J. Zucker, Newark, argued the cause for respondent, Kristeller & Zucker, Newark, attorneys.

The opinion of the court was delivered by

HEHER, J.

The questions here involve a seeming conflict of jurisdiction in proceedings relating to alimony after a foreign decree of divorce.

The case history will contribute to an understanding of the issues raised and the ultimate problem for decision.

On April 25, 1935, a final judgment and decree was entered in the Second Judicial District Court of the State of Nevada dissolving the marriage between the parties to these proceedings and directing the payment of alimony at the rate of $225 per month in accordance with a property settlement made between them and thereby confirmed and adopted as the judgment of the court. The action was brought by Thomas. Loretta appeared and participated in the proceedings, in her own proper person and by attorney, but interposed no defense at the hearing. The judgment expressly reserved jurisdiction over 'all questions of alimony,' including the power to modify the allowance in accordance with changed circumstances. It is contended that thereafter the alimony was by common consent reduced to $125 per month, commencing October 10, 1935. At all events, alimony was thereafter paid at the reduced rate and accepted by Loretta without protest. On August 15, 1949, at the instance of Loretta, the Nevada court entered judgment by default against Thomas establishing alimony arrearages of $16,700. The judgment recites personal service of process upon Thomas at his place of business in Newark, New Jersey, and his default; but the service is denied by Thomas.

On December 22, 1949, Loretta filed the verified complaint herein praying in one count for an adjudication of the quantum of alimony in arrears under the final judgment and decree of divorce of the Nevada court, the specific relief given by the cited Nevada default judgment of August 15, 1949, and in a second count for the enforcement of the latter judgment of the Nevada court. Again, there was a default, this time due to a misunderstanding of counsel as to the time set for making answer, so it is said; and on January 25, 1950, there was judgment by default fixing the alimony arrearages at $16,700 and directing the payment of a counsel fee of $1,000 and taxed costs. It is contended that this judgment is Coram non judice for want of due service of process. Thomas was served with an order directing him to show cause on February 10, 1950 why final judgment should not be rendered in accordance with the prayer of the complaint and why he should not provide maintenance Pendente lite and a counsel fee and suit money. There was provision for service of the order and complaint on or before February 1st, in accordance with Rules 3:4 and 3:79, and for making answer to the complaint within twenty days after service. Execution was issued upon the judgment.

Thereupon, on January 31st, Thomas applied to the Nevada court for the vacation of the default judgment entered against him in that tribunal on August 15, 1949; and on the following day, at his instance, a rule was entered in the present action directing Loretta to show cause on February 10th following why the default judgment of January 25th should not be vacated and leave to answer given. The hearing on the order to show cause was continued to February 24th, upon condition that Thomas give bond in the sum of $20,000 for the payment of 'any judgment' entered in the cause against him. Thomas was also directed to provide the traveling expenses of Loretta and her witnesses incident to their appearance in the Nevada court on the hearing of his application for the vacation of the judgment of August 15, 1949, if he concluded to introduce evidence in that proceeding his own or that of others. On February 16th, the Nevada court restrained the enforcement of its judgment of August 15, 1949, pending disposition of the motion to quash the purported service of process and also the question of whether the default judgment should be vacated and leave granted to answer on the merits. On February 24th, after hearing on the order to show cause made on the prior February 1st, the Superior Court denied Thomas' motion to vacate the judgment of January 25th, but stayed further proceedings to enforce the judgment until the determination by the Nevada court of the question of the sufficiency of the service of process and the validity of the default judgment entered in that cause, the stay not to extend beyond April 1st, 1950. Thomas was given leave to answer the first count of the complaint. On March 18th, after hearing, the Nevada court quashed the service of process in that proceeding, vacated the judgment of August 15, 1949, allowed Thomas to answer on the merits, continued in full force and effect the restraining order of February 16, 1950, and enjoined Loretta from taking any action for the enforcement of the judgment in any jurisdiction other than the State of Nevada.

By order dated March 31st, entered April 10th, the New Jersey Superior Court again denied Thomas' motion to vacate the judgment entered herein on January 25, 1950, and to strike the complaint, and also denied Loretta's motion to strike Thomas' answer to the first count of the complaint upon condition that Thomas shall 'present himself and his New York attorney, Edward Rager, * * * for the taking of their depositions' before a designated officer in New Jersey. The stay of execution of the judgment theretofore granted was modified to allow the enforcement of the provision for a counsel fee and costs. Nonobservance of the condition thus imposed would justify a motion for the lifting of the stay of execution and for such other relief as Rule 3:37--4 would permit. The order declared that the validity of the service of the order to show cause made July 1, 1949 in the Nevada proceedings was among the issues open for determination by the Superior Court; and leave was granted to Loretta to amend her complaint herein to include two counts: one to invoke the Court's jurisdiction to provide support and maintenance for Loretta commensurate with her present needs and Thomas' ability to pay, particularly taking into account (a) 'the depressed dollar value since 1935,' (b) Loretta's increased needs, (c) Thomas' 'enhanced financial position,' and (d) the 'change in the Federal income tax laws since 1935 making alimony paid pursuant to judgment taxable to plaintiff and deductible by defendant;' and the second for the recovery of the alleged arrears of alimony under the Nevada decree. The complaint was amended accordingly.

This order is the subject of the appeal to the Appellate Division of the Superior Court in A-38, taken April 21, 1950, and certified here, before hearing, on our own motion.

On April 12, 1950, the Nevada action was discontinued on an Ex parte motion made on behalf of Loretta; but on April 19th the discontinuance was vacated at the instance of Thomas, after hearing on notice to Loretta. The action was then set down for a hearing on the merits.

On April 21, 1950, and after the filing of the notice of appeal herein, the Nevada court restrained Loretta 'from taking any further legal action' for the collection of the alimony arrearages alleged to be due under the decree of April 25, 1935, or to enforce the agreement incorporated therein, in any jurisdiction other than the State of Nevada, pending the final judgment of the Nevada court upon the order to show cause made July 1, 1949. On the same day, the Nevada court denied Loretta's motion to vacate the order of March 18, 1950 setting aside the default judgment of August 15, 1949 and permitting Thomas to appear in the action.

Upon the entry of the order under review, Thomas applied, first to the trial division of the Superior Court and then to a judge of the Appellate Division, for a stay of the proceedings in the trial division pending this appeal. Both motions were denied. It is said that the restraining order made by the Nevada court on April 21, 1950, after the filing of the notice of appeal herein, was offered in justification of the application to the Appellate Division for a stay of all proceedings in New Jersey.

The amendment to the complaint was served on the day of the filing of the notice of appeal.

In 1937, Loretta brought an action in the Supreme Court of New York for the recovery of the alleged arrearages of alimony due under the Nevada decree. Later in that year, she filed an amended complaint alleging the utter invalidity of the Nevada decree and pleading a cause of action for divorce for...