Lum v. LumLum v. Lum
The opinion of the court was delivered by
This is a suit for specific performance of a contract for the payment' of alimony. During the pendency of a suit for divorce, the partiеs entered into an agreement “to settle all questions concerning аlimony, support and allowances and property rights by agreement bеtween themselves.”
The agreement covered six items common to divorce suits. It is assumed that all have been performed except the fоllowing paragraph which is made the basis of these proceedings and is the only paragraph of the agreement referred to in the bill:
*138 “1. The said Walter O. Lum will pay to the said Florence M. Lum, as and for her support and mаintenance, the sum of $130.00 per month until her death or re-marriage; such pаyments to be made on the Fifth day of each month.”
The agreement was dated January 13th, 1944. The husband made payments under it until a final decree of divorce was granted in his favor July 25th, 1945. The bill was filed to compel payment of arrears and monthly installments as they fall due. Appellant moved to dismiss the bill on the grоund that the Court of Chancery was without jurisdiction to decree specific performance of the agreement and for the further reason thаt the matter in dispute had been finally adjudicated by the final decree entered in the divorce proceedings. The motion was denied. An answer wаs filed on his behalf on the same grounds and the further ground that any action by complainant is cognizable in an action at law and the agreement wаs contrary to public policy and therefore null and void. The answer was stricken and a final decree entered compelling defendant tо specifically perform the terms of the agreement. The appeal is from the order denying the motion to dismiss the bill, from the order .striking the answer and from the final decree.
In Applegate v. Applegate, 135 N. J. Eq. 29, the court said:
“It has been settled by repeated decisiоns of this court that a bill does not lie for specific performance of such a contract. Our decisions hold uniformly that alimony is a subject spеcifically committed to the Court of Chancery and arising from the presеnt or past status of the parties as husband and wife. The jurisdiction not only exists whilе that relation persists, but by the express language of the Divorce Act (Comp. Stat. p. 2031/. § 25), continues after decree of divorce; and it necessarily includes the power, in cases where the wife is entitled to alimony, to regulate thе amount of such alimony from time to time, to supervise agreements betwеen the parties in that regard, to enforce them if deemed just, and to decline to recognize them otherwise. Calame v. Calame, 25 N. J. Eq. 548. But these powers grow out of the existing or pre *139 existing marital status, and are not сontrolled by the rules of specific performance of contrаcts. The bill in this case being framed as a bill for specific performanсe, was properly dismissed as such, and the decree will accordingly bе affirmed, but without prejudice to an application for suitable alimony, on which application the wife may legitimately ask the court to recognize the agreement as a basis for its award, and the court will reсognize it or not as it thinks proper.” Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529.
This proceeding is not ancillary to оr in any way connected with the suit for divorce between the parties. It is nоt brought within the jurisdiction of the Court. of Chancery over matrimonial matters. The bill is, and is framed as a bill for specific performance of a contrаct to pay alimony. The motion to dismiss the bill should have been granted. Finding as wе do, that the court was without jurisdiction to entertain the bill, it is not necessary tо determine the other questions involved.
The order below is reversed, and the cause remanded to the Court of Chancery with instructions to dismiss the bill of complaint.