Curley v. CurleyCurley v. Curley
This action was brought by Mrs. Jean Curley against her former husband, Kryan Curley, from whom she had been divorced, to secure support for herself and three infant children, two of them born of their marriagе and the third, Judith, an illegitimate child. After their divorce, which had been secured in California in 1949, Mr. and Mrs. Curley cohabited in New Jersey, and Judith was born. Mr.
Subsequently Mrs. Curley brought an action in the Bergen County Juvenile and Domestic Relations Court and obtained an order requiring Mr. Curley to pay her a lump sum of $300 a month for the support of herself and her children. Then she commenced this action in the Superior Court, on the theory that the Bergen County Juvenile and Domestic Relations Court lacked jurisdiction because the Curleys “were not husband and wife.”
The Superior Court awarded Mrs. Curley, pendente lite, $150 pеr month for the support of herself and $75 per month for each of the three infants. 34 N.J. Super. 257. Mr. Curley appeals, raising three questions.
The first question goes to the insufficiency of the affidavits furnished below. On an application by a wife for the support of herself and her children pendente lite, she is obliged to establish, among other things, the extent of their needs, Streitwolf v. Streitwolf, 58 N.J. Eq. 570, 574 (E. & A. 1899), and the extent of her income and means. Verbeeck v. Verbeeck, 93 N.J. Eq. 17, 21 (Ch. 1921); Westerfield v. Westerfield, 36 N.J. Eq. 195 (Ch. 1882); Herr, 10 N.J. Practice 364 (1950).
From the affidavits here, it appears that Mr. Curley is paying Mrs. Curley $300 a month; further that —
“I [Mrs. Curley] have been employed in a clerical capacity * * * but * * * must give up this employment to care for my children.
* * * * * * * *
I have no property of any kind. I live with our children in an apartment for which I pay $92.00 a month. It is absolutely necessary to obtain a private home. One of the children needs extensive orthodontical work, the estimated cost of which is $4,000.00.”
This — all that the court had before it on the point — is plainly an insufficient statement as to the needs of Mrs. Curley and her children and a somewhat thin statement as to her earnings and income. We do not see how a court can say on the strength of these affidavits that the $300 a
The allowance of support pendente lite is a matter resting in the discretion of the court below, Lasasso v. Lasasso, 1 N.J. 324, 329 (1949); Waltz v. Waltz, 16 N.J. Super. 119, 123 (App. Div. 1951). But manifestly here the affidavits furnished the court with an inadequate basis on which to exercise its discretion. The order allowing support will have to be reversed.
The second point argued here presents a novel constitutional question; but, we conclude, we are obliged to deal with it, as, upon the remand of the case, the parties will straightway be confronted with it. Borawick v. Barba, 7 N.J. 393 (1951) holds that
The first of these matters is Mrs. Curley‘s claim for her own support. This claim is cognizable in the Superior Court (see
Second, there is Mrs. Curley‘s claim for the support of the illegitimate child, Judith. This (as stated) is cognizable in certain inferior courts, including the Juvenile and Domestic
Third, there is Mrs. Curley‘s claim for the support of the two legitimate children. This is cognizablе in either the Superior Court,
The precise question, then, is whether Mrs. Curley is obliged to bring one action against Mr. Curley in the Superior Court with respect to her claim for her own support and a second action against him (which also should be brought in her own name, Kopak v. Polzer, 4 N.J. 327, 331 (1950)) in the Juvenile and Domestic Relations Court (or another inferior cоurt) with respect to her claim on Judith‘s behalf. Her claim as to the two legitimate children could be joined in the Superior Court action or perhaps (as we have assumed above) the Juvenile and Domestic Relations Court action.
”Subject to rules of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and funсtions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined.” (Italics added.)
We think it plain that the term “legal * * * relief,” as used in this clause, is not to be confined to the redress afforded by thе former Supreme and Circuit Courts at the adoption of the Constitution. We therefore regard it as of no consequence that the relief sought here on Judith‘s behalf was not cognizable in those courts at that time. Manifestly the jurisdiction of the Superior Court was not laid out in the Constitution in terms of the jurisdiction then existing in the former courts. Mr. Justice Jacobs, as a delegate to the Constitutional Convention, had this to say on the convention floor on August 18, 1947, speaking for a draft of Judicial Article which in this regard is substantially the counterpart of that which was adopted (see 2 Constitutional Convention, 1947, p. 1174):
“* * * you will see that we have deliberately avoided any jurisdictional statements with respect to law and equity.” 1 Constitutional Convention, 1947, p. 474.
There was clearly a deliberate endeavor here on the part of the Constitution makers not to follow the methods of the 1844 Constitution and the amendments proposed in 1909, under which the only constitutional power granted to the constitutional courts was the power possessed by a preеxisting court.
Furthermore, we regard it as of no consequence that the relief sought on Judith‘s behalf is statutory in origin. Surely the term “legal * * * relief” is not to be limited to such relief as was given by the common law. Folwell‘s Case, 68 N.J. Eq. 728, 731 (E. & A. 1905).
But — and this is the crux of the matter here — are the words “legal * * * relief” in this context so to be defined
There are no authorities on that question. To resolve it, one must be satisfied with broad pronouncements as to the policies which formed
“Uppermost in the minds of the constitutional delegates was the desire to end costly piecemeal litigation * * *. Thus they provided generally for the expeditious adjudication of all matters in controversy between parties at one time and place (
Const. 1947, Art. VI, Sec. III, par. 4 * * *).”
Similarly in Massari v. Einsiedler, 6 N.J. 303, 307 (1951), it was said:
“One of the designs of the Judicial Article of the 1947 Constitution was to facilitate and expedite the hearing of causes by disposing of all matters, whether legal or equitable, arising in a сontroversy in one trial and thus avoid multiple trials of the same case.
Article VI, sec. III, paragraphs 3 and4 of the Constitution * * *.”
In In re Opper‘s Estate, 29 N.J. Super. 520, 524 (App. Div. 1954), we had this to say:
“As indicated by [Donnelly v. Ritzendollar, 14 N.J. 96, 101-106 (1953)] and Tumarkin v. Friedman, 17 N.J. Super. 20 (App. Div. 1951), one of the major objectives of the new Constitution was to permit, in fact to require where possible, the complete determination of a controversy between the parties by the court which first properly obtained jurisdiction over thе subject matter.”
This then is one of the “great” objectives of the Constitution of 1947, and of the practice implementing it —
We are entirely persuaded that the constitutional provision under consideration was designed to be as all-embracing as the following clause which, placed (as it was) in the opening section оf the Judicial Article proposed by the Legislature in 1944,
“* * * subject to rules of the Supreme Court, every controversy shall be fully determined by the court or justice hearing it.” 4 Constitutional Convention, 1947, p. 566 (the judges of the Superior Court were termed justices in the Constitution proposed in 1944).
See the similar clause similarly placed in the Constitution drafted by the Commission on Revision of the Constitution, 1942 — a clause to be found also in a draft prepared by a committee of the State Bar Association, 1947. 4 Id., p. 560, 587. Indeed, the provision as it was adopted by the people in 1947 seems but a reworking of this earlier clause, in order to bring out its full significance. The present clause aims (subject to rules) at making ”any cause” in the Superior Court as efficient a vehicle as practicable for the disposition of ”all matters in controversy between the parties,” whether legal or equitable; but it in no way attempts to subtract from the cоmprehensive injunction of the earlier clause, which requires “every controversy” (subject to rules) to be completely disposed of by the court hearing it, an injunction that, certainly as stated in this earlier clause, cast upon the court the power to perform the task given it.
Everything we have read as to the history of the Judicial Article demonstrates that the supreme consideration at work in the establishment of the Superior Court was the demand for a court of original jurisdiction which would have the capacity, in one action, to dispose of an assortment of controversies between the parties, without parcеlling the
This being the large purpose of that provision, we think its terms furnish the Superior Court implicitly with the jurisdiction indispensable to the accomplishment of that purpose — even though, except for this clause, one branch of the controversy would have been cognizable only in an inferior court. We would, it seems to us, be thwarting these broad designs in this case if we were to subject the parties here to suits in two courts.
Our decision of course goes no further than this case; we make no attempt to define the full significance of the constitutional clause under consideration. But it is to be observed that here the several “matters in controversy between the parties,” arising under
The view we reach then is that
The order appealed from is reversed with respect to the matters brought before us, namely, as to support and counsel fees.
JAYNE, J.A.D. (dissenting in part).
I concur in the majority opinion to the extent that it reverses (a) the award of alimony (support) pendente lite to the former wife, and (b) the allowance of a $400 fee to her counsel.
However, I find myself unable to agree with the determination of the appeal in its relation to the three children, and in obedience to the provisions of
Of record аt the time of the filing of the complaint in the Superior Court was the judgment of the Juvenile and Domestic Relations Court in favor of Mrs. Curley and her children. The award by that court to defendant‘s former wife is coram non judice. Under
True, our Supreme Court has said: “Our judicial system contemplates that generally all matters in controversy between the parties, whether legal or equitable, will be disposed of in a single action.” New Jersey Highway Authority v. Renner, 18 N.J. 485, 492 (1955). But, apart from the interesting constitutional question which is adjudged in the majority decision, as to which I find it unnecessary to express my opinion, it does not seem to me that the salutary objective of the Constitution, even if it be given the sweep accorded it in the majority opinion, was intended to embracе the situation of a case already decided by the statutory court clothed with jurisdiction of the subject matter. In the instant case, there is more than a suggestion of harassment if the defendant is called upon anew to litigate a decided matter. It seems like the same cause of action. Cf. Miller v. Miller, 13 N.J. 555 (1953).
I am also influenced by my сonception of the rationale of the Supreme Court‘s decision in Borawick v. Barba, 7 N.J. 393, 408 (1951), from which I recall the following:
“* * * The purpose that the inferior courts should continue as theretofore, without constitutional addition to or subtraction from their jurisdictions, either directly or by the indirect method of giving the Superior Court a greater participation in their jurisdictions than the predecessor courts had possessed, is manifested in varying degrees by other paragraphs of the Constitution.”