69 A.2d 712 | N.J. | 1949
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *268
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *269 This is an appeal from a judgment of the Superior Court, Chancery Division, in a "matrimonial action," as defined inRule 3:82(b). The appeal was taken to the Appellate Division under Rule 4:2-2(c) but was certified by the court on its own motion under Rule 1:5-1(a).
Two questions are presented for our determination, first, can support of a minor child of parents divorced in another state be ordered by the courts of this state against a resident of this state when the child is neither an inhabitant of, nor physically within this state, and further, can a judgment for support arrearages based on a decree of a sister state under the same circumstances be ordered; second, was the Florida decree in so far as it purports to provide for the support of the child a final decree so as to be entitled to full faith and credit in New Jersey, under the Federal Constitution?
Plaintiff and defendant were married in New York in September, 1939. One child, a daughter, was born of the marriage. She is now ten years of age and is in the custody of and lives with her mother, who admittedly is a resident of Richmond, Va. Defendant is a resident of this state.
In May, 1946, plaintiff and defendant were divorced by a final decree of the State of Florida, an appearance having been entered by the defendant. That decree, by its terms, awarded the care, custody and control of the minor child to *270 the plaintiff with reasonable visitation rights being granted the defendant. That final decree awarded no alimony to the plaintiff but required that the defendant pay to her the sum of $80 per month for the support of the minor child. Since the entry of that decree the defendant has made only one support payment of $40.
The complaint asks relief on two counts (1) to compel the defendant to provide suitable support and maintenance for the child and (2) for judgment in the amount of the unpaid accrued arrearages under the Florida decree, amounting to $2,840, with interest and costs. Plaintiff gave notice of a motion for reliefpendente lite, the disposition of which was held pending decision on this appeal, and defendant served notice of a cross-motion to dismiss the complaint upon the ground it failed to set forth a cause of action upon which relief could be granted. Defendant's motion was denied and this appeal is from the order entered thereon.
It cannot be questioned but that to predicate an action on this statute the child's residence in this state is a jurisdictional prerequisite. Goodman v. Goodman, 15 N.J. Misc. 716 (Ch.
1937). See Hachez v. Hachez,
Appellant relies strongly on Harrington v. Harrington,
R.S. 2:50-37 was enacted as section 25 of the Divorce Act,P.L. 1907, c.
We concur in the reasoning of former Advisory Master Herr inLevy v. Levy, 17 N.J. Misc. 324, 326 (Ch. 1939), and his statement as to the effect of R.S. 2:50-37 in his work on divorce, Vol. 1, Sec. 446, p. 564. In the Levy case
complainant, who had been awarded $15 per week by a New York decree for her support and that of her child, sought alimony and maintenance in our courts, both pendente lite and permanent, for the child who lived with her in New York. Defendant had remarried and lived in New Jersey. Ad interim maintenance for complainant and the child was allowed in the sum of $15 weekly under R.S. 2:50-37. The court pointed out that until the 1938 amendment it was without jurisdiction to award a wife, who had received a decree of absolute divorce elsewhere than New Jersey, alimony and maintenance under R.S. 2:50-37, citing Hughes v.Hughes,
R.S. 9:2-1 does not limit or restrict R.S. 2:50-37. These two statutes can be reconciled. R.S. 9:2-1 was primarily passed to provide an additional remedy for the support of an infant child in a proceeding for determining the custody of infant children found within the state. It was intended to implement the general equity jurisdiction parens patriae. The cases referred to by appellant Hachez v. Hachez, supra; *273 Brown v. Parsons, supra; In re Smith, supra; deal specifically with the single question of custody.
R.S. 9:2-1 provides a remedy irrespective of the domicile of the parents and while it also included a provision empowering the court to order support in the situation defined therein, no order of support can be made unless the defendant parent is served personally in the jurisdiction, because until the parent is thus brought into court there is no proceeding pending with respect to the question of support. White v. White,
It is a proper deduction to conclude that motivating reasons for the enactment of the amendment of 1938, R.S. 2:50-37, were to effectuate the public policy of preventing this state from becoming a haven for defendants against whom decrees for support have been entered in foreign jurisdictions and to clear up any doubt with respect to the ability of our courts to grant relief by way of support after a foreign decree with respect thereto has been entered.
There is no common law duty for a parent to support a child, the duty is a moral one. Neither parent is legally compellable to perform such a duty except in the manner provided by statute.Meier v. Planer,
We are convinced the law of the State of Florida is that its courts may modify or alter a decree providing for the support of a minor child as to future payments, but cannot do so as to those payments past due and payable. The provision of the decree does no more than restate the Florida statute. Section 4993,C.G.L. 1927.
In the case of Pottinger v. Pottinger,
As to orders for the payment of alimony the ruling of the Supreme Court of Florida is to the same effect, Van Loon v. VanLoon,
The courts of New York and Pennsylvania also have so construed the Florida statutes, Preston v. Preston (1941),
In Boyer v. Andrews, 186 So. 825 (Fla. Sup. Ct. 1940), the court considered an Illinois decree under which the divorced wife sued to recover past due installments for support and maintenance of her minor son and held that decree irrevocable as to past due installments, even though the provision of the decree providing for the payment recited "until further order of the court." The case of Sistare v. Sistare,
The United States Supreme Court in Sistare v. Sistare, supra, a case wherein the Supreme Court of Connecticut had refused to recognize a decree of the State of New York because it was of the opinion that the New York courts could modify or annul the support provisions thereof and therefore it was not final, held the power to modify did not extend *276
retroactively to arrearages. The case of Lynde v. Lynde,
The law of Florida being that a decree ordering support to a minor made by its courts is, as to past due arrearages, a final judgment, the holding of the former Court of Errors and Appeals in Bolton v. Bolton,
2 Beale, Conflict of Laws, § 435.2, pp. 1392-1393, has this to say concerning the subject under discussion "A valid foreign judgment for alimony in a lump sum, being an ordinary money judgment, will be enforced. Where, however, the alimony takes the form of an ordinary decree that so much be paid weekly or monthly until further order the case is different. As to installments not yet due it is clear that no order can be made. Even as to installments overdue it was generally held at first that, since the decree could be modified at any time, it was never a final judgment, and nothing could be recovered on it. But later it was held that recovery could be had if the court that rendered the decision could not modify it as to installments already due, though if it had the power of modification as to installments already due no action *277 would lie on the judgment in another state. Finally, most of them following the case of Sistare v. Sistare, it was held that action would lie on a foreign judgment as to unpaid installments if in fact the first judgment had not been modified as to these installments. Where action is allowed on a foreign decree for care of children, the course of decision is similar."
The judgment is affirmed.
Heher, J., concurring in result.
For affirmance — Chief Justice VANDERBILT, and Justices CASE, HEHER, OLIPHANT, WACHENFELD, BURLING and ACKERSON — 7.
For reversal — None.