Stultz v. Stultz
| Decision Date | 30 November 1953 |
| Docket Number | No. A--647,A--647 |
| Citation | 101 A.2d 77,28 N.J.Super. 446 |
| Parties | STULTZ v. STULTZ. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Benjamin I. Kantor, Keyport, for appellant (Karkus & Kantor, Keyport, attorneys).
John Warren, Jr., Red Bank, for respondent (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).
Before Judges EASTWOOD, JAYNE and FRANCIS.
The opinion of the court was delivered by
JAYNE, J.A.D.
The parties to this litigation are of the approximate age of three score years and ten. They were married on September 19, 1906. Four sons were born of the marriage. Discord terminated the marital cohabitation of the parties in August 1931 since which time they have had separate abodes.
Mr. Stultz was initially engaged in the manufacture of artificial ice in Keyport, New Jersey, which successful enterprise he sold in 1927 to the Seaboard Ice Company. He then conducted in Keyport a coal and feed business which was incorporated in New Jersey in 1930 under the title Louis Stultz, Jr., Inc. The company, enlarging its trade to include the sale of fuel oil and oil burners, continues in business under the management of the four sons.
It seems evident that Mr. Stultz has been regarded as a sagacious businessman. During a span of 31 years he served as a director and as chairman of the board of the Peoples National Bank of Keyport, and during a period of 22 years as a director of the Borough Building and Loan Association of Keyport and Matawan, New Jersey, of which he was also an officer for 12 years. He was a member of the Keyport Yacht Club. To him boating and fishing have been recreational pleasures. We allude to those activities of Mr. Stultz because we shall have occasion to refer to them again in our review of this case.
Let us turn over the next leaf of the story and speak of the situation Mrs. Stultz has occupied. She has been supported and maintained ever since the separation in 1931 by Mr. Stultz. She has continued to occupy the residential property at No. 155 Division Street, Keyport. Indeed, in 1933 Mr. Stultz vested in her by deed a life estate in that property with remainder in the four sons. Her practice was to forward the bill for any indebtedness she contracted and wished Mr. Stultz to pay, to his business office. All such have always been paid by Mr. Stultz. She has regularly received from him an allowance of $30 a week which some time ago was increased to $35. During the more than a score of years that have elapsed since 1931 it is not apparent that she has complained to Mr. Stultz or to her sons of a lack of adequate support and maintenance. Throughout those years Mr. and Mrs. Stultz have never conversed.
Mr. Stultz resolved to retire from his business routine and on April 5, 1950 transferred sufficient shares of stock in the corporation to vest in his four sons the ownership of 94 shares of the 100 shares of capital stock of the corporation, retaining only six shares for himself. On April 5, 1950 in a contemporaneous agreement with his sons reciting that in making the assignment of stock he desires to make provision for the continued support and maintenance of his wife, the sons contractually obligate themselves to pay Mrs. Stultz 'the sum of Thirty-five ($35.00) Dollars per week for and during' her natural life 'for her maintenance and support,' and additionally to pay 'all amounts due on account of medical, hospital or professional nursing expenses that may be necessary in the event of any illness' of Mrs. Stultz, and furthermore to pay 'all amounts due for taxes, assessments, heat, water charges, telephone charges and insurance premiums on both real and personal property, and all amounts due on account of repairs and improvements to the real property of' Mrs. Stultz 'at No. 155 Division Street' in Keyport. Thus Mr. Stultz caused Mrs. Stultz' bread to be buttered on both sides. At the trial Mrs. Stultz frankly acknowledged that the sons had never declined to pay any bill that she had presented to them.
Early in December 1951 Mr. Stultz visited his brother and sister-in-law who resided in St. Petersburg, Florida. Both the brother and his wife were in an incapacitating state of health and in financial need. They owned the home in which they were residing. Having remained in Florida for some few weeks, Mr. Stultz resolved to acquire the ownership of the home subject to a life estate therein to be retained by his brother and sister-in-law and make the house in St. Petersburg, which was adequate to accommodate all of them, his permanent residence. The conveyance bears date February 5, 1952.
The uninterrupted transquility in the solitary relations between Mr. and Mrs. Stultz continued as theretofore until in May 1952 when for some reason Mr. Stultz commenced an action for divorce on the ground of extreme cruelty in the Circuit Court of Pinellas County, Florida, and formal notice of its institution came to Mrs. Stultz. She caused an answer to be filed in the cause on her behalf.
On August 1, 1952 Mrs. Stultz instituted the present action in this court praying judgment: (1) that the defendant be enjoined from the further prosecution of the divorce action in the Florida court or any other action for the dissolution of the marriage elsewhere than in the State of New Jersey, and (2) that the defendant be compelled to provide her with suitable support and maintenance and incidentally fees for her counsel. The defendant was served personally with process in this State. Judgment was rendered in her favor on both counts and a counsel fee of $1,000 awarded. We review the judgment on the defendant's appeal.
It will be expedient for us first to express our opinion concerning the count for maintenance. This alleged cause of action was unwarranted, unproved, and profitless. In the suit of a wife for separate maintenance under the statute there must be proof that the husband has refused or neglected to maintain and provide for her. R.S. 2:50--39, as amended in 1948, now N.J.S. 2A:34--24, N.J.S.A.; Dinnebeil v. Dinnebeil, 109 N.J.Eq. 594, 158 A. 475 (A. & A.1932).
The only deprivation of which the plaintiff was mindful at the trial was her lack of automotive local transportation which occasioned her dependence upon taxicabs. In contrast are the impressive remarks of the defendant:
We cannot discover in the transcript of the testimony any proof to sustain the allegation that the defendant has refused or neglected to provide support for his wife and this leads us to conclude that there was no justifiable reason for the compulsory judgment. Therefore in that respect the judgment is reversed.
There remains for consideration the branch of the judgment restraining the defendant from the further prosecution of his pending action for divorce in the Florida court or similar proceedings elsewhere than in New Jersey.
There is no doubt of the power of our court of equity jurisdiction to enjoin in certain circumstances at the suit of a resident spouse the prosecution of an action for divorce by the other spouse in a foreign jurisdiction. Kempson v. Kempson, 58 N.J.Eq. 94, 43 A. 97 (Ch.1899), modified 63 N.J.Eq. 783, 52 A. 360 (E. & A.1902); Ippolito v. Ippolito, 3 N.J. 561, 71 A.2d 196 (1950).
The existence of the power to enjoin In personam is indubitable, but the propriety of its exercise depends upon the circumstances of the particular case. Perhaps the most common cause for the injunctive relief is present where the asserted residence of the plaintiff in the foreign jurisdiction is not Bona fide but is fraudulently simulated for the purpose of prosecuting the divorce action.
Such a factual basis for the granting of the restraint may not appear to be sustained by the evidence adduced in the present case. Here, the husband manifested an apparent intention to remain indefinitely, if not permanently, in St. Petersburg by resigning as an officer and director of the bank and building and loan association at Keyport, terminating his membership in the Keyport Yacht Club, notifying the clerk of the Borough of Keyport of his change of voting residence, procuring an automobile, driver's license and car registration at St. Petersburg, joining the city's Chamber of Commerce, and purchasing a home there. True, more abundant proof of Animus manendi would not ordinarily be available. Was he familiar with the factual pattern in Smith v. Smith, 364 Pa. 1, 70 A.2d 630, 633 (Sup.Ct.1950)?
However, we ponder, as we presume did the trial judge, whether the defendant having separated from his wife in 1931 is unfeignedly and in guileless conscience 20 years later so promptly instituting in a distant jurisdiction an action against her for divorce on a ground so stagnant. That complexion of the defendant's conduct does not escape the eye of equity. We realize that he possessed the right to institute his action in Clackamas County, Oregon, had such been his chosen residence. There is a type of human behavior which appears superficially correct but is intrinsically unjust.
Where there is, as here, cause to mistrust the Bona fides of the Prosecution of the action abroad,...
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