Maloney v. Maloney

• Decision Date: 21 March 1934
• Citation: 174 A. 28
• Parties: MALONEY v. MALONEY.
• Court: New Jersey Court of Chancery

174 A. 28

MALONEY

v. MALONEY.

Court of Chancery of New Jersey.

March 21, 1934.

Syllabus by the Court.

1. Under the provisions of the Divorce Act (P. L. 1907, p. 474, 2 Comp. St. 1910, p. 2021, § 1 et seq.), the Court of Chancery has jurisdiction to award permanent alimony and maintenance for the children of the marriage in the wife's custody on the wife's application after final decree for divorce in her favor, although her petition for divorce may not have prayed for alimony and maintenance and although the decree for divorce be silent thereon.

2. Although the substantive jurisdiction of the Court of Chancery in matters of divorce, maintenance, and alimony must he found within the provisions of the Divorce Act, its remedial powers in such matters are not limited thereby.

3. In a proceeding for alimony and the maintenance of children, pending a suit for divorce or subsequent to a decree for divorce against an absent defendant not served with process, the Court of Chancery has authority to issue the writ of sequestration as original process, both by virtue of the 1019 supplement to the Chancery Act (P. L. 1919, c. 204, p. 444 [Comp. St. Supp. § 33—52a et seq.]), commonly known as the "Sequestration Act," and (independently of statute) by virtue of its inherent prerogative power.

4. The prerogative of the Chancellor to issue appropriate process is as broad, within constitutional limitations, as is required to deal effectively with the subject matter over which his jurisdiction extends.

5. A claim for alimony and maintenance of children is "a claim cognizable in a court of equity" within the purview of P. L. 1919, c. 204, p. 444 (the Sequestration Act [Comp. St. Supp. § 33—52a et seq.]).

6. The Chancery Act (P. L. 1902, p. 510), and its amendments and supplements (see 1 Comp. St. 1910, p. 410, § 1 et seq.; Comp. St. Supp. § 33—1 et seq.), are procedural and general in character. Their provisions apply to all proceedings brought in chancery under special acts except to the extent that such special acts may expressly limit their operation.

7. The title of the Chancery Act, viz., "An Act respecting the Court of Chancery," and its amendments and supplements, satisfies article 4, § 7, subd. 4 of the New Jersey Constitution (providing that the title shall express the object) in its application to proceedings brought under special statutes in the Court of Chancery.

8. In a proceeding for alimony and the maintenance of children pending a suit for divorce or subsequent to a decree for divorce against an absent defendant not served with process, the seizure of property in New Jersey belonging to such defendant under a writ of sequestration issued as original process in such alimony proceeding (mesne process in the divorce suit) will support an order in rem for the payment of alimony and maintenance out of such property, without violating the constitutional guaranty of due process of law contained in the Fourteenth Amendment to the Constitution of the United States.

Petition for absolute divorce by Helen C. Maloney against Edwin J. Maloney. On defendant's motion under special appearance to set aside order and writ of sequestration on proceeding for permanent alimony following final decree for divorce.

Motion denied.

McCarthy & McTague, of Jersey City, for petitioner.

John Milton, of Jersey City, for defendant.

HERR, Advisory Master.

On February 18, 1931, Helen C. Maloney filed her petition in this cause for an absolute divorce from the defendant, Edwin J. Maloney, on the ground of desertion. The petitioner was then and still is a bona fide resident of New Jersey. Jurisdiction for the purpose of the divorce was acquired by publication, followed by notice without the State, as service substituted for personal service of process within the state.

The defendant did not appear, and the allegations of the petition were proved ex parte before a special master, who found that the parties were married on October 11, 1924, that there was one child born of the marriage, a girl of five years of age at the time of filing the petition, that the defendant deserted the petitioner and their child in the month of July, 1926, ever since which time his desertion had been willful, continued, and obstinate, and that the petitioner was a bona fide resident of New Jersey when said cause of action arose and had ever since and for more than two years preceding the commencement of the action continued to be such bona fide resident. A decree nisi was duly entered on March 22, 1932, in favor of the petitioner, which decree recited that jurisdiction over the defendant had been acquired by publication and notice without the state, as aforesaid. By final decree entered on June 23, 1932, the decree nisi was made absolute, the parties divorced from the bonds of matrimony, and the marriage dissolved.

The petition contained no specific prayer for alimony of the wife or maintenance of the child. Neither the decree nisi nor the final decree make such provision. No application was made at any time for alimony or maintenance until September 13, 1933, when the petitioner filed a petition in the cause setting forth the facts hereinabove stated and alleging further that she is without funds to properly support herself and the child and has no income except such as is derived from her own exertions; that defendant is not a resident of New Jersey and cannot be found within this state for the service of process; that defendant has recently become entitled, as next of kin of his uncle, to a distributive share of his uncle's estate; that said uncle died domiciled in New Jersey and his estate is in process of administration in New Jersey, by reason whereof the defendant has property within this state; and that defendant's means are amply sufficient for him to raise and pay such sums as may be necessary for the support of the petitioner and their child. The petition prays that an order may be made for permanent alimony for the petitioner and for the payment of a reasonable amount for the support, maintenance, and education of the child, that a writ of sequestration issue to compel defendant's appearance and performance of such order us may be made, that defendant and the administrators of his uncle's estate be restrained from dealing with the defendant's property in such manner as to defeat petitioner's claims, and that a receiver be appointed.

Upon the filing of this petition, duly verified, an order was made herein on September 13, 1933, that a writ of sequestration issue against the defendant, directed to a master in chancery, ordering him to immediately sequester the defendant's estate, etc., restraining the defendant from incumbering, pledging, or transferring any of his property within this state, and restraining the administrators of the uncle's estate from selling, delivering, or turning over to the defendant or any other person any or all of the estate, real or personal, etc., to which the defendant is entitled.

On September 14, 1933, a writ of sequestration was issued pursuant to said order, which was executed as therein directed.

By leave of the court, the defendant, Edwin J. Maloney, appears specially for the sole purpose of attacking the jurisdiction of the court to make the order of September 13, 1933, and to issue the writ of sequestration; and argues that the court derives its jurisdiction in the matter solely by statute, that the Divorce Act does not make any such provision, and that the 1919 Supplement to the Chancery Act (P. L. 1919, p. 444 [Comp. St. Supp. § 33—52a et seq.]), known as the Sequestration Act, cannot be invoked by the petitioner to authorize the order and writ because a claim for alimony is not within the defined purpose of the 1919 act, because it is a general act and cannot be deemed to amend the prior Divorce Act which is a special act, because the title of the 1919 act is not sufficiently broad to permit a construction of it to include alimony claims without contravening article 4, § 7, subd. 4, of the New Jersey Constitution, and finally because to so construe the 1919 act would violate the due process of law provision of the Fourteenth Amendment to the United States Constitution.

By virtue of the Divorce Act (P. L. 1907, p. 474, 2 Comp. St. 1910, p. 2021, § 1 et seq.), this court has jurisdiction to award permanent alimony, as well as maintenance for the children of the marriage in the wife's custody, on the wife's application after final decree for divorce in her favor, although her petition for divorce does not pray for alimony or maintenance and although the final decree is silent thereon. McKensey v. McKensey, 65 N. J. Eq. 633, 55 A. 1073; Sweeney v. Sweeney, 95 N. J. Eq. 192, 122 A. 877; Sobel v. Sobel, 99 N. J. Eq. 376, 132 A. 603: Smith v. Smith, 88 N. J. Eq. 319, 102 A. 381.

While the court derives its substantive jurisdiction over divorce, maintenance, and alimony solely from the Divorce Act (Anonymous, 24 N. J. Eq. 19; Hervey v. Hervey, 56 N. J. Eq. 424, 39 A. 762), and while that act prescribes special forms of process and modes of procedure, it was not the legislative intent to limit thereby the court's remedial powers in dealing with such matters, for by section 9 (2 Comp. St. 1910, p. 2033) it is provided that "the like process and procedure shall be had and pursued in all such causes as are usually had and pursued in other causes in the court of chancery, except so far as other process and procedure is prescribed by or under the authority of this act."

In suits for divorce or nullity as distinguished from suits for) maintenance under section 26 (2 Comp. St. 1910, p. 2038), the writ of sequestration is not prescribed as original process by the Divorce Act. Section 25 (amended P. L. 1933, p. 296 [Comp. St. Supp. § 62—25] authorizes the issuance of the writ pending a suit for divorce or nullity or after decree for divorce only in execution of an order or decree for alimony. In this respect...