Madden v. Madden.

• Decision Date: 04 January 1945
• Docket Number: No. 218.,218.
• Citation: 40 A.2d 611
• Parties: MADDEN v. MADDEN.
• Court: New Jersey Supreme Court

40 A.2d 611

MADDEN v. MADDEN.

No. 218.

Court of Errors and Appeals of New Jersey.

Jan. 4, 1945.

Appeal from Court of Chancery.

Divorce action by Elizabeth Miller Madden, now Elizabeth Miller Peterson, against Elmer J. Madden, wherein petitioner secured an absolute divorce and an award of alimony, under which latter award defendant was in arrears. From a decree, after petitioner's remarriage, which annulled alimony order ab initio and enjoined petitioner's action at law to obtain a judgment for arrears, petitioner appeals.

Affirmed.

Michael G. Alenick, of Newark, for appellant.

Meyer M. Semel, of Newark, for respondent.

On appeal from a decree of the Court of Chancery advised by Herr, A.M., who filed the following opinion:

‘In this cause the petitioner, Elizabeth Miller Madden (now Peterson) secured her decree nisi for absolute divorce against the defendant, Elmer J. Madden, on August 9, 1938, and her final decree on November 10, 1938. By the provisions of the decree nisi she was awarded alimony at the rate of $12.50 per week. On November 17, 1942, she brought proceedings in contempt against defendant for his failure to pay a total of $1,862.50 (accumulated arrearages up to that date under the order of August 9, 1938). The proofs filed ondefendant's behalf on the contempt application indicated that his default had been due to his financial inability to comply with the terms of the order, rather than to any wilful non-feasance. Accordingly, a consent order was entered on December 8, 1942, providing that ‘no disposition be made for the present of the application for contempt, but that the defendant be and he is hereby required to make payment to the petitioner in conformity with the existing decree of August 9, 1938, of the sum of $12.50 per week from November 17, 1942, * * *’ and ‘that petitioner's assent to the making of this order shall be without prejudice to her rights to demand payment of alimony in arrears'.

‘On the same day on which this lastmentioned order was made (December 8, 1942) petitioner married one Peterson. She did not disclose to defendant the fact that she had remarried, but continued to accept his alimony payments in the total sum of $240. Defendant's last payment was made on April 3, 1943. On October 13, 1943 petitioner instituted an action at law against defendant in the Essex County Circuit Court to recover the sum of $1,695, the total of the arrearages of alimony accrued up to the date of her remarriage on December 8, 1942, less the $240 thereafter paid by defendant.

‘Defendant moved in the Circuit Court to dismiss the complaint on the grounds that the subject matter of the suit was still pending and undetermined in Chancery, that the Circuit Court had no jurisdiction to entertain the suit because it arose out of a decree of the Court of Chancery, and that the Court of Chancery has exclusive jurisdiction to enforce its own decrees. The Circuit Court declined to strike the complaint.

‘It is not the function or intention of this court to question the soundness of the adjudication of the Circuit Court. But that adjudication was necessarily limited to the assertion of its own jurisdiction. It did not decide that this court lacks jurisdiction of the same subject matter, or that equitable defenses may not exist beyond the jurisdiction of the Circuit Court to consider.

‘It is axiomatic that this court has jurisdiction. It made the alimony order upon which petitioner's action at law is based, and retains a continuing jurisdiction to modify and to enforce it. Parmly v. Parmly, 125 N.J.Eq. 545 . Having secured her order in this court, petitioner will not be permitted to prosecute her action at law touching the same subject matter. See Brengel v. O'Toole, 101 N.J.Eq. 449 . Particularly should she be enjoined because, having accepted the benefit of the order under the statutory limitation that her right thereto would cease upon her remarriage, she now seeks by her action at law to rid herself of that limitation, which can be enforced only in this court, and to escape other equitable defenses beyond the jurisdiction of the Circuit Court to consider.

‘It is clear that such equitable defenses do exist, and that they are both of a negative and of an affirmative character. See Pomeroy: Eq.Jur. (4th Ed.) sections 1360-1362. As to the negative equitable defenses (available to defendant only in this court when and if petitioner brings proceedings here touching her alimony), see Duffy v. Duffy , 19 N.J.Misc. 332, and cases therein cited.

‘Defendant's affirmative equitable defense is his right to secure an order from this court under R.S. 2:50-38 [N.J.S.A.] vacating and annulling the original alimony order because of the petitioner's remarriage. Defendant now moves on notice for such an order, nunc pro tunc as of the date of the entry of the alimony order. Petitioner argues that no order can properly be made which will have the effect of abolishing her right to collect arrearages accrued prior to her remarriage.

‘The statutory provision (R.S. 2:50-38 [N.J.S.A.]) is as follows: ‘If after the decree of divorce the wife shall remarry, the court of chancery shall not make any order touching the alimony of such wife except that the court of chancery, upon application of the former husband, on notice and upon proof of the marriage of the former wife after the decree of divorce, must modify any order or decree touching the alimony of the former wife by vacating and annulling any and all provisions in any such order or decree, or both, directing the payment of money for the support of the former wife’ (L.1933, C. 145, par. 1, p. 296).

‘The statute requires this court, on proper application by the...