Suozzo v. Suozza

• Decision Date: 22 October 1938
• Citation: 1 A.2d 930
• Parties: Suozzo v. Suozza
• Court: New Jersey Court of Chancery

1 A.2d 930

Suozzo v. Suozza

Court of Chancery of New Jersey.

Oct. 22, 1938.

Syllabus by the Court.

1. A contemnor of an order for alimony may not be heard in regard to said order until the contempt is purged, but application of the rule is left to the sound discretion of the Court.

2. The rule may not be invoked to bar a good defense, nor to effect any other inequitable result.

3. Post marital unchastity of a former wife does not bar her right to alimony after her decree for absolute divorce, nor is such misconduct ground for vacating alimony as granted in her decree for absolute divorce; but, in a proper case, such misconduct may be material to the quantum of such award.

4. To invoke the doctrine of unclean hands there must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought. After decree for absolute divorce a former wife owes no marital duty to her former husband. Her subsequent unchastity has no direct bearing upon the issue of alimony, nor its continuance.

Contempt proceeding by Anna Suozzo against Joseph Suozzo for defendant's failure to pay permanent alimony awarded after a decree of absolute divorce, wherein defendant petitioned to vacate the order for alimony.

Application for vacating alimony order dismissed.

Wilbur L. Ross, of Jersey City, for petitioner.

William J. O'Hagan, of Asbury Park, for defendant.

ROGERS, Advisory Master.

This is an application to hold defendant in contempt for failure to pay permanent alimony awarded after decree of absolute divorce. The order provided for payment of $7 per week, and it is charged that he has failed to pay since March 29, 1937, and is in arrears $455.

The defendant counters with a petition to vacate the order for alimony alleging petitioner's remarriage in April, 1937, and alleging adultery since that time.

The applications came on for hearing at the same time upon the return of the orders to show cause granted upon the petitions, and petitioner objected to defendant's counter application being heard until he had fully satisfied the arrears under the alimony order. Of course, it is the rule that a contemnor of an alimony order will not be heard upon his application for modification, or rescission, until he has satisfactorily settled his default. However, the rule is not without exception. It is addressed to the sound discretion of the court, and may be relaxed where its application would not serve its underlying purpose. The rule may not be invoked to suppress a good defense, nor to accomplish an inequitable purpose.

Assuming the truth of the allegations of the counter petition, it is in substance a defense to the petition to adjudge defendant in contempt. It has been held under our statute (Rev.St. 2:50-38) that remarriage of a former wife after her decree for divorce ipso facto terminates her right to further payments under her order therefor in that on application of the former husband the court must vacate such order and hold it ineffectual from the date of remarriage. Hauenstein v. Hauenstein,¹ Docket 57, page 92; Rothenberg v. Rothenberg,¹ Docket 76, page 621.

Certainly, to compel the former husband to settle the arrears before hearing the counter application would be unjust and so, even though defendant's previous conduct toward the order shows unwillingness to obey. Furthermore, in this matter the petitioner instituted the proceeding. The defendant brought his application in response to it. To conclude the applications together is expeditious and not harmful to petitioner. Under the circumstances the objection raised is without merit.

Upon the oral hearing defendant offered no proof that petitioner had ceremonially remarried. The evidence submitted bears wholly upon petitioner's cohabitation with Louis Greenberg and their reputation of marriage. Though I am satisfied the proofs show that petitioner and Greenberg engaged in sexual intercourse during July and August, 1938, the evidence of an existing marital relationship is far from conclusive. Maxwell v. Maxwell, 98 N.J.Eq. 493, 131 A. 215. The lack of evidence of a ceremonial marriage and the failure to establish clearly and convincingly a marital cohabitation and marital reputation warrant holding that defendant has failed to sustain these...