Zelek v. Brosseau, A--577

• Decision Date: 25 November 1957
• Docket Number: No. A--577,A--577
• Citation: 136 A.2d 416,47 N.J.Super. 521
• Parties: Virginia (Brosseau) ZELEK, Plaintiff-Respondent, v. Orville BROSSEAU, Defendant-Appellant, . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 521

47 N.J.Super. 521

136 A.2d 416

Virginia (Brosseau) ZELEK, Plaintiff-Respondent, v. Orville BROSSEAU, Defendant-Appellant,

No. A--577.

Superior Court of New Jersey Appellate Division.

Argued Nov. 18, 1957.

Decided Nov. 25, 1957.

Frank M. Lario, Camden, argued the cause for appellant.

A. David Epstein, Camden, argued the cause for respondent (Epstein & Fluharty, Camden, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from a summary judgment entered in plaintiff's favor by the County Court in an action brought upon a Vermont judgment fixing arrearages insupport money for their infant son provided for under a prior divorce decree.

The parties were married in 1940 in Vermont. There was one child born of the marriage. In 1942 plaintiff instituted divorce proceedings against her husband in the Chittenden County Court, Vermont. He entered an appearance by an attorney, but did not otherwise participate in the proceedings. Plaintiff prevailed. The divorce decree of July 7, 1942 awarded her custody of the boy and ordered defendant to pay her $6 a week for his support. Plaintiff's affidavit alleges that defendant was duly served with this order and that he undertook to make support payments pursuant to its terms and conditions. The order undoubtedly was served on defendant's Vermont attorney, defendant not being present within the State. Defendant does not presume to deny service; he states, merely, that he was never served Personally with the order.

In 1955 plaintiff, who had since remarried, filed a petition with the Chittenden County Court under Vt.Rev.Stat., § 3241 (1947), as amended by Vt.Pub.Acts 1955, No. 110--the amendment had become effective only four months before--for a judgment fixing the amount of arrearages due under the support order since October 1, 1947. Defendant was then and is presently a resident of Westmont Township, Camden County, New Jersey. In accordance with Vermont law, Vt.Rev.State., § 2136 (1947), an order issued out of the Chittenden County Court for out-of-state personal service upon defendant, calling upon him to appear and answer within 21 days from service. He was personally served at his home with certified copies of the original writ declaration and summons, as well as the order of notice. He did not appear or answer. Accordingly, the Vermont court on December 14, 1955 awarded plaintiff judgment for support arrearages in the amount of $2,568, after expressly finding that defendant had been duly served with the 1942 support order and had made payments thereunder until 1947.

The present action was brought upon an exemplified copy of the Vermont judgment, and it was pleaded that the judgment had been obtained in accordance with the laws of Vermont. Defendant answered and raised various defenses, among them that the judgment was void because Vermont did not have jurisdiction over him or the subject matter, the judgment was not a final one, it had been obtained by fraud, and was void because contrary to the public policy of this State as reflected in the Uniform Reciprocal Enforcement of Support Act, N.J.S. 2A:4--30.1 et seq., N.J.S.A. (L.1952, c. 197, as amended by L.1953, c. 245). Interrogatories were served on plaintiff and answered, and her deposition taken. Plaintiff then moved for summary judgment, both sides submitting affidavits and briefs. The County Court granted the motion, concluding as a matter of law that the Vermont court had jurisdiction, there was no fraud in procuring the Vermont judgment, and enforcement of the judgment was not against our public policy.

On appeal defendant raises the same questions of jurisdiction, fraud and public policy, and contends that the Vermont judgment was not entitled to full faith and credit in the courts of our State. He further argues that plaintiff could not properly bring the present action in her own name because the support was owed to the child, and that her right to collect arrearages is vitiated because she has deliberately stolen the child's affections away from the father. None of these arguments have merit. Summary judgment was properly allowed.

Defendant's attack upon the jurisdiction of the Vermont court because of lack of personal service upon him in that state, is patently misdirected. The Vermont court obtained In personam jurisdiction over him when he entered his appearance by attorney in the original 1942 divorce action. It could therefore not only dissolve the marriage bond but enter the custody and support order it did. Having once appeared, defendant submitted himself to the continuing jurisdiction of the Vermont court as to all matters stemming from the original decree, without the necessity of any subsequent independent acquisition of jurisdiction over his person. This concept of continuing jurisdiction is universally accepted. See Restatement, Conflict of Laws, §§ 76, 82, pp. 114, 125 (1934), and 1948 and 1954 Supplements; Goodrich, Conflict of Laws (3d ed. 1949), § 73, p. 196; Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1945), rehearing denied 328 U.S. 876, 66 S.Ct. 975, 90 L.Ed. 1645 (1945); Commonwealth ex rel. Milne v. Milne, 149 Pa.Super. 100, 26 A.2d 207 (Super.Ct.1942); and Hatch v. Hatch, 15 N.J.Misc. 461, 192 A. 241 (Ch.1937). The only constitutional prerequisite is that defendant be given such notice of any subsequent proceeding as will satisfy the reasonable notice demand of the due process clause. Griffin v. Griffin, above, 327 U.S. at page 228, 66 S.Ct. at page 560; Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Cukor v. Cukor, 114 Vt. 456, 49 A.2d 206, 168 A.L.R. 227 (Sup.Ct.1946); Kase v. Kase, 18 N.J.Super. 12, 17, 86 A.2d 587 (App.Div.1952).

Vt.Rev.Stat., § 3241 (1947), as amended by Vt.Pub.Acts (1955), No. 110, provides:

'Action to recover alimony, support money and suit money. When a decree or order for the payment of either temporary or permanent alimony, allowance for the support, care or maintenance of a minor child or children or suit money has been made by the county court or a superior judge, and the person liable for the payment of money under such decree or order has accepted service thereof, or has been legally served with notice of such decree or order, the party entitled by the terms of such decree or order to payment thereunder may bring a petition to the county court asking for a determination of the amount due under such order. Upon notice to the other party and hearing thereon, the county court shall render judgment in favor of the petitioner for the amount due under such decree or order, or such part thereof as the court deems just and such judgment shall be as binding in all respects as though rendered in an action of contract. An additional petition may be brought at any time for further unpaid balances. The county court in which the cause was pending at the time the original order was made shall have jurisdiction of petitions under the provisions of this section, irrespective of the amount in controversy or the then residence of the parties. Such petitions may be brought and judgment obtained on decrees and orders heretofore rendered and still in force.'

The Vermont Legislature recognized defendant's rights by establishing reasonable safeguards to afford him notice. Vt.Rev.State., § 2136 (1947) provides:

'When an action is commenced at law or in equity, an absent defendant, residing or being without the state so that process cannot be served on him, may be notified of the pendency of such action and given opportunity to make defense therein, by the delivery to him personally at any place within or without the state, of copies of the process and pleading, and of an order for such delivery, stating the time and place when and where he is required to appear, all under the hand of the clerk or a magistrate of the court wherein the action is pending. County clerks may issue such orders and certify such copies in or out of term time, and before and after the entry of such action in court.'

Contrary to defendant's contention, the Vermont action was not an original, plenary one where an In personam judgment was entered for a cause of action over which that State had no jurisdiction. Were that the case it is undisputed that defendant would have had to be served personally in Vermont. Pennoyer v. Neff, 95 U.S. 714, 24, L.Ed. 565 (1877). The action here was a summary one, brought pursuant to the quoted statute, to determine and reduce to a sum certain the arrearages due from defendant to plaintiff under the support order theretofore entered. Jurisdiction to make such a determination derived from the jurisdiction obtained over defendant and the service of the support order in the first instance.

The notice given to defendant of the arrearage action, by personally serving him at his home in New Jersey, was entirely adequate. It met the test set out by Chief Justice Beasley in Jardine v. Reichert, 39 N.J.L. 165, 169--170 (Sup.Ct.1877):

'It is one of the unquestionable prerogatives of every independent government to prescribe the method by which parties interested shall be apprised of the pendency of proceedings in its tribunals; and such method can be repudiated, and the adjudication founded thereon can be invalidated, by the courts of other states, only when it is so plainly inefficacious as a means of notification that its normal operation must, in the main, result in decisions against persons out of the jurisdiction, and who have no knowledge of the danger with which they are threatened. The rule established by the authorities * * * is, that the judgment cannot be disregarded in the extra-territorial suit, unless the notice to bring the defendant into court has been, on account of its inefficacy, inconsistent with that general canon of jurisprudence which, in all cases, requires that a person must...