Goodman v. GoodmanGoodman v. Goodman
On June 15th, 1931, petitioner secured a decree of absolute divorce against defendant in the Supreme Court of the State of New York. Both parties were then domiciled in that state. The decree included an order granting to her the custody of an infant son of the marriage and an allowance of $15 per week for his support. In November, 1934, the order was modified by reducing the allowance to $7 per week. This reduced allowance has since been paid by defendant without default. Petitioner and the child remain domiciled in New York, but defendant now resides in New Jersey and has been personally served here with process in this suit.
The petition alleges three causes of action. In the first count the petitioner seeks to recover a lump sum for alleged arrearages under the 1931 decree, at the rate of $8 per week from December, 1934, charging that the order reducing the allowance was based upon defendant’s fraudulent misrepresentation that ho was unable to pay the allowance originally fixed. Under the second count she seeks the decree of this court for the payment of a $15 per week allowance in futuro, and (as an additional cause of action) the sum of $437.70 for medical and hospital expenses heretofore incurred by her for the benefit of the child.
In my judgment, the first count sets up no cause of action of which this court has jurisdiction. Assuming that the order reducing the allowance was entered as the result of such fraud as to require that it be vacated, it is not fraud upon the jurisdiction, but intrinsic, inhering in the cause itself, and not legally a basis for collateral attack. Wilson v. Anthony, 72 N. J. Eq. 836;
The jurisdiction of the New York court has not been divested because of the removal of the defendant’s residence to New Jersey. It may grant relief to the petitioner on notice to the defendant outside of the state. White v. White, 65 N. J. Eq. 743, 747;
Petitioner’s second cause of action is premised upon section 6 of the Minor’s act of 1902 (2 Comp. 8tat. p. 2809), as amended in 1936 (P. L. 1936 ch. 247; N. J. 8tat. Annual 1986 § 97-18), and upon section 25 of the Divorce act. P. L.
May the second count of the petition be retained as a suit for the maintenance of the child under section 25 of the Divorce act? In Noel v. Noel, 15 N. J. Mis. R. 576; 19. Atl. Rep. 558, this court held that where there has been no adjudication with respect to alimony, an ex-wife who has secured her divorce in a foreign tribunal may maintain an independent suit for alimony in New Jersey under section 25 of the Divorce act, upon personal service of process in this state. Although in that case the husband was under contract to maintain his wife, her suit was based not upon the contract but upon the defendant’s obligation arising out of the past marriage status. The decree rested upon that obligation, not upon the contract. Does the fact that the New York court has made a maintenance award in petitioner’s favor take this case out of the rule established in the Noel Case? So far as this question is concerned there is no distinction to be made between alimony for the wife and maintenance for the children. Ziesel v. Ziesel, 98 N. J. Eq. 153, 157;
Whatever may have been the extent of the father’s common law duty to provide for his children (see Murphy v. Murphy, 102 N. J. Eq. 552, 554;
The common law obligation of a man to support his wife follows him wherever he goes, and if he comes to New Jersey he is liable also for the support of his children under our statutory provisions. If this court secures jurisdiction over his person, or seizes his property located in this state, it may enforce both of these obligations, against his person or his property as the ease may be, whether wife or children be domiciled in New Jersey or elsewhere. “State boundaries do not make court barriers.” Gasteiger v. Gasteiger, 5 N. J. Mis. R. 315, 317;
The petition filed in this cause alleges facts sufficient to show a change of circumstances of the parties since the time of the entry of the New York decree. If the decree had any res judicata effect with respect to the amount of the award, such effect did not survive a substantial change in the circumstances of the parties after its entry, so that the petitioner is not foreclosed in her action under the doctrines of res judicata or election of remedies. See In re Erring, 109 N. J. Eq. 294;
Ought this court to exercise its concurrent jurisdiction under the circumstances presented by the petition? It is under no legislative mandate to do so. Hatch v. Hatch, supra. If the circumstances of the case do not require its exercise, considerations of comity and propriety will move the court to decline to entertain a suit when a foreign court has first assumed jurisdiction of the subject-matter. But in the instant case the fact that the New York court cannot carry its orders into effect because of defendant’s removal from the state is a practical circumstance justifying the exercise of this court’s concurrent jurisdiction. If the petitioner were forced to seek relief in the New York court, she could not compel obedience to its orders except by bringing a second proceeding against him wherever he can be reached with process of execution. Equity is reluctant to encourage a multiplicity of suits. Furthermore, and more important, the petitioner would be unable to execute her award in New Jersey, even after bringing her suit here, except by process against the defendant’s property, if he have any. She could not execute it against his person, because her New York
Petitioner’s additional claim for payment of medical and hospital charges heretofore incurred by her for the child’s benefit, if it be a valid claim (see Murphy v. Murphy, supra) is within the jurisdiction of the New York court. This court has no power to grant relief for the reason that the obligations were incurred before the commencement of this suit. If the New York court awards petitioner a judgment, ancillary relief may doubtless be extended to her in an action at law in this state.
No point is made of the fact that petitioner has attempted to invoke the jurisdiction of the court by petition instead of by bill. In the absence of statutory authorization the original jurisdiction of this court in adversary cases must be invoked by bill. No such statute applicable to the present instance has been brought to the court’s attention. The Divorce act (section 10) provides that suits for divorce and nullity under the act shall be commenced by petition. A plenary suit for alimony or maintenance under section 25 or 26 is not within this statutory provision. The present proceeding by petition is therefore erroneous, and would have to be dismissed were it not for the fifth section of the Chancery act of 1915 (P. L. 1915 ch. 116), which provides that the court may order proper amendments to be made. In re Kiger, 98 N. J. Eq. 512;
The petition may be amended accordingly into a bill for the present maintenance of the child under section 25 of the Divorce act. In all other respects the motion to strike will prevail.