Noel v. Noel

• Decision Date: 25 June 1937
• Citation: 193 A. 558
• Parties: NOEL v. NOEL.
• Court: New Jersey Court of Chancery

193 A. 558

NOEL

v. NOEL.

Court of Chancery of New Jersey.

June 25, 1937.

Syllabus by the Court.

The Court of Chancery has jurisdiction to decree alimony in an independent proceeding under section 25 of the Divorce Act (2 Comp.St.1910, p. 2035, § 25, as amended by P.L.1933, c. 145, p. 296 [N.J.St.Annual 1933, § 62—25]) to a wife who has secured a decree of absolute divorce outside of this state in proceedings in which the matter of alimony has not been adjudicated.

Suit by Dorothy L. Noel against Henry M. Noel, wherein defendant filed a motion to dismiss.

Motion denied.

Lionel P. Kristeller, of Newark, for complainant. Kalisch & Kalisch, of Newark, for defendant.

HERR, Advisory Master.

For the purposes of the motion the conceded facts are that in March of 1934, while the parties were living in France, they entered into a contract of separation by which defendant agreed to pay complainant a fixed monthly sum of money for her support during her lifetime or until her remarriage; that thereafter complainant secured a decree of absolute divorce against defendant in the French courts; that in the divorce proceedings complainant did not pray for alimony, inasmuch as defendant was then paying the monthly installments as agreed, for which reason no alimony was awarded to her; that thereafter the parties came to the United States and are now domiciled in New Jersey; and that defendant has gradually reduced his payments to complainant to the extent that she complains that her present allowance is insufficient to enable her to maintain herself in her proper station in life and according to the standards of living to which defendant has accustomed her.

The validity of the agreement and of the divorce decree is conceded. It is not contended that under the French law the failure of the decree to provide for alimony bars complainant from applying subsequently therefor in the French courts. The question for determination on this motion is whether under the facts above stated complainant's bill for alimony may be maintained.

Complainant does not seek the specific enforcement of her contract, although that remedy is available to her in this court. Cohen v. Cohen, 121 N.J.Eq. 299, 188 A. 244; Moller v. Moller, 121 N.J.Eq. 175, 188 A. 505. She fears that the Court of Errors and Appeals might reverse such a decree, on the strength of its decisions in Second National Bank v. Curie, 116 N.J.Eq. 101, 172 A. 560, Aiosa v. Aiosa, 119 N.J.Eq. 385, 183 A. 219, and Phillips v. Phillips, 119 N. J.Eq. 462, 183 A. 220. She prefers to take what she regards as the safer course of waiving any right she may have to enforce the agreement as such and of asking the court to fix and enforce the payment of a suitable allowance to her by way of alimony.

The defendant contends that the French court has exclusive jurisdiction to decree alimony, if jurisdiction exists anywhere, because alimony is merely an incident of the decree of divorce made by that court, and that section 25 of our Divorce Act, 2 Comp.St.1910, p. 2035, § 25, as amended by P.L.1933, c. 145, p. 296, N.J.St.Annual 1933, § 62—25, which is the sole source of this court's authority to decree permanent alimony, does not extend to cases where divorce has been decreed in a foreign state or country.

For the purposes of this motion, it must be presumed that the same constquences flow from the French decree as if it were a decree of our own court. Sturm v. Sturm, 111 N.J.Eq. 579, 587, 163 A. 5.

In Pierson v. Pierson, 189 A. 391, 15 N. J.Misc. 117, 129, it was suggested that the Court of Errors and Appeals, in declining by its more recent decisions to approve the use of the remedy of specific performance with respect to the particular agreements involved in those cases, intended to designate the statutory remedy as applicable in every case in which, disregarding the agreement, a wife or ex-wife is entitled to be supported. The peculiar jurisdiction of this court in such cases is, of course, well settled. Dennison v. Dennison, 98 N.J.Eq. 230, 130 A. 463, 467, affirmed 99 N.J.Eq. 883, 133 A. 919. It has been emphasized and reaffirmed in the more recent Court of Errors and Appeals cases above cited, and it is there defined as the power, growing out of the existing or pre-existing marital status, in all cases where the wife or ex-wife is entitled to support, to regulate the amount of such support from time to time, to supervise agreements between the parties in that regard, to enforce such agreements if deemed just, and to decline to recognize them otherwise. It is the power to enforce the husband's legal obligation to support, as distinguished from the power to enforce the contract, to fix the measure and enjoin the performance of that obligation in the form of a decree for alimony or separate maintenance, having regard to, but not being controlled by, any agreement which the parties themselves may have made with respect to the measure of the husband's duty.

By its recent pronouncements the Court of Errors and Appeals has held in effect that, so long as the husband's legal (as distinguished from contractual) obligation exists, the parties are incompetent to make an absolute agreement fixing the measure of that obligation. Because of the lack of inherent jurisdiction to decree permanent alimony (Freund v. Freund, 71 N.J.Eq. 524, 529, 63 A. 756, affirmed 72 N.J.Eq. 943, 73 A. 1117; Hervey v. Hervey, 56 N.J.Eq. 424, 426, 39 A. 762), it has in effect construed section 25 of the Divorce Act as empowering the court to decree alimony in every case in which the husband is under such legal obligation, including such cases as that now before the court where the wife's decree of divorce was secured in a foreign jurisdiction. The same construction seems to have been applied by it in the earlier case of Ziesel v. Ziesel, 93 N.J.Eq. 153, 157, 115 A. 435, 18 A.L.R. 896, involving the custody and maintenance of a child of parents divorced in a foreign state.

Although it has generally been supposed that section 25 as amended, was intended to apply only where the decree of divorce has been entered in this court, the broader construction placed upon it by the Court of Errors and Appeals rests upon established principles. It has Jong been settled that under that section the wife may bring proceedings for alimony at any time after she secures her decree for divorce, although the decree may contain no provision...