Paramore v. Paramore, A--579

• Decision Date: 15 October 1954
• Docket Number: No. A--579,A--579
• Citation: 108 A.2d 455,32 N.J.Super. 491
• Parties: Lessle PARAMORE, Plaintiff-Appellant, v. Louis PARAMORE, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 491

32 N.J.Super. 491

108 A.2d 455

Lessle PARAMORE, Plaintiff-Appellant, v. Louis PARAMORE, Defendant-Respondent.

No. A--579.

Superior Court of New Jersey Appellate Division.

Argued Oct. 4, 1954.

Decided Oct. 15, 1954.

Edward I. Berry, Jr., Camden, argued the cause for the appellant (Richman & Berry, Camden, attorneys).

No appearance for respondent.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The Chancery Division denied recognition of a judgment granted by the appropriate court of the State of Pennsylvania for accumulated arrearages under an order for support. This appeal followed.

Plaintiff wife, a resident of Pennsylvania, obtained an order for support against the defendant husband in the Municipal Court of Philadelphia. Arrearages of $2,750 having accumulated, she filed a petition in that court asking that they be reduced to judgment and that the weekly allowance be increased.

The petition recited that the husband was a resident of the State of New Jersey, in business here, and the owner of real estate in Glassboro, New Jersey. It was further alleged that he might sell the property without her knowledge and consent.

A hearing was held in the municipal court at which both parties were represented by counsel and both testified. While their testimony is not included in the appendix, it seems from a colloquy between court and counsel, which is set forth, that inquiry was made as to the husband's assets and the wife's situation. At the conclusion of the discussion, the court declined to increase the maintenance award. However, he directed that judgment be entered for the arrearages in the amount of $2,750 and the record discloses the entry of such judgment on October 3, 1952.

During the course of the colloquy about the delinquent payments, the court ordered the defendant 'to pay $3 a week on the arrears.' At the end of the record of the proceedings appears this note: 'Respondent to pay $3 per week additional on the arrears; attachment continued.' Whether an order to this effect was actually entered is not shown by the exemplified copy of the record submitted to our Chancery Division. However, the pretrial order recites that plaintiff does not dispute the making thereof

Thereafter suit was brought on the judgment in the Law Division of our Superior Court, which by consent was transferred to the Chancery Division. There the court held that the $2,750 judgment was subject to revision and reduction under the Pennsylvania law, and was therefore not a final judgment. Consequently, it was not entitled to full faith and credit under Article IV, Section 1, of the Constitution of the United States. As the result of this determination the complaint was dismissed.

Under our law, past due installments under a foreign decree or order or judgment for alimony or support are entitled to full faith and credit if the right to them is absolute and vested. Whitehead v. Villapiano, 16 N.J.Super. 415, 422, 423, 84 A.2d 731 (App.Div.1951); Frank v. Frank, 10 N.J.Super. 73, 79, 76 A.2d 527 (App.Div.1950), modified 7 N.J. 225, 81 A.2d 172 (1951).

The trial court felt that the wife's right to the accrued installments of support was not vested and final because of the Pennsylvania statute, 17 Purdon's Penna. Statutes Annotated, § 263 (P.L. 440, June 19, 1939). This act says:

'Any Order heretofore or hereafter made by any court of this Commonwealth for the support of a wife, child or parent, may be altered, repealed, suspended, increased, or amended, and the said court may, at any time, remit, correct or reduce the amount of any arrearages, as the case may warrant.'

The critical word here is 'order' and in our judgment its significance was overlooked. There can be no doubt that under the enactment in question any outstanding support order is in the control of the court which made it both as to future installments and unpaid arrearages. Arrearages may be cancelled or reduced. Under these circumstances, if the present suit sought a judgment therefor, the relief would have to be denied because the element of finality was lacking in their character. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Frank v. Frank, supra, 7 N.J. 225, 81 A.2d 172 (1951); Annotation, 157 A.L.R. 181.

However, we are not dealing with arrearages, as such, any longer. The court of origin of the support order exercised its discretion under the statute referred to and entered judgment. In that proceeding a binding reduction or cancellation might have been ordered; but that was not done. Instead the court by its action transformed the arrearages into an ordinary judgment debt. The matter then became Res judicata and any subsequent proceeding would concern itself with a judgment and not an Order for support. Such a judgment has the requisite finality to require full faith and credit in this state. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, 157 A.L.R. 163; Annotation, Id., p. 181; Annotation, 6 A.L.R. 1311; Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946), rehearing denied 328 U.S. 876, 66 S.Ct. 975, 90 L.Ed. 1645 (1946); Savoie...