101 N.J. Eq. 523 | N.J. Ct. of Ch. | 1927
The complainant files her bill for maintenance alleging: 1. Marriage. 2. Abandonment and refusal to support. 3. Proceedings in the supreme court of New York, and decree thereon on May 13th, 1921, that defendant should pay to complainant $50 per week. 4. Modification thereof on June 6th, 1921, reducing said payments to $150 per month. 5. No payments since March, 1924. 6. Defendant is a resident of New Jersey. 7. Bill filed under section 25 of the Divorce act.
Upon the filing of the verified bill an order to show cause was granted. Upon the return of said order to show cause the defendant files answering affidavits in which it is stated: "That said judgment was entered against him in said cause, and that said judgment still remains of record unreversed in said court," and offered in evidence an exemplified copy of said judgment.
No denial was made of the allegation that said judgment was modified by the New York court, and it is therefore assumed that that court had power so to do. Tehsman v. Tehsman,
The defendant insists this court has no jurisdiction in this matter in its present form, by reason of the clause in the federal constitution requiring "full faith and credit, c.," and cites Bates v. Bodie (January 21st, 1918),
Vice-Chancellor Emery proceeded further and stated (at p. 528,71 N.J. Eq.): "Whether, independent of the full faith and credit clause, and as a matter of comity, decrees of this character, subject to future modification, will be enforced by actions at law or in equity so long as they remain unrevoked or unaltered, has not been expressly decided in this state. In the courts of some states they have been enforced, but many of the decisions are rested on the full faith and credit clause, and being rendered before decision in the Lynde Case, these decisions are to this extent overruled by that case. The authorities are collected in 1 Whart. Confl. L. (3d ed.) 525 § 239c. In a later case, Wagner v. Wagner (R.I.) (1904),
Treating the bill as a bill purely for alimony under the *526 statute, the New York decree set out in the bill is evidence of the wife's right thereto, as was said by Mr. Justice Dixon in a similar case. Van Orden v. Van Orden, 58 N.J. Eq. (13Dick.) (Court of Errors and Appeals, 1899) 545, and the first question is how far it is conclusive on this point.
This judgment was rendered by a court having jurisdiction in a cause in which the defendant appeared and defended, denying the abandonment, and I think the judgment is conclusive evidence of the abandonment by the husband at the time therein fixed (December, 1881), and sufficiently proves a case of abandonment then commencing. If the former judgment for abandonment had been recovered in this state it would have been conclusive evidence of the abandonment and of the time of its occurrence in a subsequent suit for desertion. Smith v. Smith, 55 N.J. Eq. (10 Dick.) (Vice-Chancellor Pitney, 1897) 222, 225. And under the federal constitution and laws, the judgment in New York having been rendered by a court having jurisdiction of the parties and the subject-matter, and after a trial on the merits, is conclusive upon the issues determined as the foundation for the judgment of divorce or separation. Bullock v. Bullock,52 N.J. Eq. (7 Dick.) (Court of Errors and Appeals, 1894) 561, 567,575; Bullock v. Bullock, 57 N.J. Law (28 Vr.) (SupremeCourt, 1895) 508. The same effect is given to such decrees for future alimony in the State of New York. Lynde v. Lynde
(1900),
It follows that this case is within the case of Freund v.Freund, and this court has jurisdiction in this cause, and the order will be advised in accordance with the oral statement made by the court at the hearing. *527