Smith v. Smith

• Decision Date: 19 November 1917
• Citation: 88 N.J.Eq. 319,102 A. 381
• Parties: SMITH. v. SMITH.
• Court: New Jersey Supreme Court

102 A. 381

88 N.J.Eq. 319

SMITH.

v. SMITH.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1917.

Appeal from Court of Chancery.

Suit by Kittle L. Smith against William J. Smith. From an order granting alimony, defendant appeals. Affirmed.

Henry Marelli, of Paterson, for appellant.

Addison Ely, Jr., of Rutherford, for appellee.

GUM MERE, C. J. This is an appeal from an order of the Court of Chancery granting alimony to the respondent, upon her application for the same made subsequent to the entry of a final decree for divorce in an undefended suit brought by her against her husband. Neither in the decree nisi nor in the final decree was there any provision relating to the payment of alimony, nor was the right to make future application therefor reserved to the respondent.

The contention of the appellant is that the Court of Chancery was without jurisdiction to make the order appealed from, for the reason that by making the final decree divorcing the parties it lost jurisdiction over them, as well as over the subject-matter of the suit, and of all matters incidental thereto; that this is the necessary result of a final decree in a divorce suit, unless the Chancellor expressly reserves some feature of the litigation for future judicial action.

It is urged that this contention receives support from the decision in Lynde v. Lynde, 54 N. J. Eq. 477, 35 Atl. 641; on appeal, Id., 55 N. J. Eq. 591, 39 Atl. 1114. In that case it was said by the Chancellor that the subject of alimony was dealt with by the Legislature as an adjunct of the divorce suit, and that it was at least a question of grave doubt whether, when the final decree in such a case failed to treat of the question of alimony in any way, it will not be taken to have determined all matters involved in the suit, including the question of alimony. The decree in the cited case was affirmed by this court on the Chancellor's opinion, and the doubt expressed by him as to the effect of the final decree under the conditions stated was, inferential, reiterated by us. When that decision was promulgated, the provision of the divorce act regulating the matter was as follows:

"When a divorce shall be decreed it shall and may be lawful for the Court of Chancery to take such order touching alimony and maintenance of the wife by the husband as from the circumstances of the parties and the nature of the case shall be reasonable and just." Gen. Stat. p. 1269, § 19.

The language which created the doubt...