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Isserman v. Isserman

Decided: April 11, 1949.

GRACE ISSERMAN, PLAINTIFF-APPELLANT,
v.
ABRAHAM ISSERMAN, DEFENDANT-RESPONDENT



On appeal from the former Court of Chancery.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Case, J.

Case

[2 NJ Page 2] The appeal brings up what is in effect a ruling on evidence made in the Court of Chancery by an advisory

master in a marital cause. The Court of Errors and Appeals had directed that certain evidence be taken in a certain way. The advisory master, considering that the meritorious question to be reached by the evidence had been adversely settled by the United States Supreme Court, refused to sign the necessary order. Such a course, on a matter of preliminary practice and procedure, tends toward confusion, misdirection and delay. The master should have allowed the order. That would have brought in the proofs for what they might be worth and would have left the meritorious question open.

The parties were married in New Jersey and resided here. In 1926 Mrs. Isserman filed her bill in our Court of Chancery, as a result of which, on May 18, 1927, she secured a final decree which granted separate maintenance from her husband, Abraham Isserman, with a stated allowance for the support of the complainant and of Harold Isserman, the infant child of the marriage, and the custody of the child to her. On September 23, 1941, the parties, whom we shall refer to as husband and wife, being in court or represented, an order was made modifying the final decree to provide that $45.00 a week should be paid by the husband, $41.50 to the wife and $3.50 directly to the child. On April 18, 1944, the husband filed, in Chancery, his petition, from which the present proceeding stems, and alleged therein that on September 17, 1943, he, then being a citizen, resident and domiciliary of the State of Nevada, filed his suit in the Second Judicial District Court of that state in and for the County of Washoe for divorce against his wife; that the wife entered a general appearance therein, filed her answer and also a counterclaim for affirmative relief by way of absolute divorce and otherwise; that the suit came on for trial and hearing and that both of the parties contested the same fully and on the merits; that the proceedings in New Jersey were fully disclosed and that a stipulation was entered into in open court in the presence of the parties and their respective attorneys whereby it was decreed that the husband pay to the wife certain designated sums of money for her support and that of the minor child then (the time of the filing of the petition

in Chancery) of about the age of seventeen years; that the stipulation was reviewed, considered and approved by the Nevada court; that thereafter the said court stated its findings of fact and conclusions of law and rendered its final decree for divorce, copies of all of which were attached to the petition and made a part thereof; that by the terms of the decree husband and wife were fully divorced and the marriage dissolved and each was discharged from all obligations to the other except in so far as concerned the provisions of the stipulation for the payments of moneys mentioned above; that the husband had fully complied with the Nevada decree and that the wife had, by reason of the agreement and stipulation, waived her rights to the order of the Court of Chancery for the support and maintenance of herself and the minor child; that the Nevada decree had fully destroyed the subject matter of the New Jersey suit in so far as the same relates to the former marriage and that the stipulation and decree for support of the wife and the infant child had fully destroyed the subject matter of the New Jersey suit in so far as concerns the rights of the wife to moneys from her former husband for the support of herself and the child; and upon those allegations the petition of the husband prayed that the New Jersey decree be modified to provide for the dismissal of the 1926 bill of complaint and that all orders in the cause for the support of the wife and the child be vacated. That, of course, constituted the husband the moving party in an effort to dismiss a New Jersey suit of eighteen years duration and the final decree, with modifications thereof, entered therein. Annexed to the petition were what purported to be the findings of fact, the conclusions of law, and the decree of divorce of the Nevada court. That decree, inter alia, orders thus:

"It is further ordered, adjudged and decreed that the provisions herein made in this decree as to all property rights, the right of the defendant to alimony and separate support and maintenance, and all other rights arising out of the marital relation, be, and the same are, in the place of and in the stead of, any and all provisions made for said defendant in that certain action in New Jersey entitled 'In Chancery of New Jersey (Docket 62/538), Between

Grace Isserman, Complainant, and Abraham Isserman, Defendant;' that all obligation of the plaintiff to make any payments under said decree of said Court of Chancery of New Jersey be, and the same is hereby, terminated; that this decree completely supersedes and makes null and void said decree of said Court of Chancery of New Jersey, and said decree of said Court of Chancery of New Jersey is hereby abrogated and henceforth null and void."

The wife resisted the application in Chancery on the ground that the Nevada decree was obtained by the fraud of the husband upon her, upon the Nevada court and upon the New Jersey court. At the hearing before the advisory master she sought to take testimony in open court on the issue of whether the husband was, in fact and in law, domiciled in Nevada at the time the divorce in that state was procured. The advisory master denied the request and was held by the Court of Errors to have erred in so ruling. Isserman v. Isserman, 138 N.J. Eq. 140. The opinion states:

"At the trial before the learned advisory master, complainant sought to take testimony in open court on the issue as to whether the defendant was in fact and in law domiciled in Nevada at the time the divorce in that state was procured. This application was denied and, we think, erroneously. * * * The opportunity to cross-examine was denied to the appellant and this was a right to which she was entitled, unless some law, the existence of which has not been brought to our attention, provides otherwise. It may be that oral proofs may not change the result, but nonetheless orderly process requires its use. (Italics inserted.)"

The record was accordingly remitted to the Court of Chancery, whose duty it then became to carry into effect the order of the appellate court. R.S. 2:29-124. If the husband considered that because of newly arisen conditions that order had become unsound law it was his privilege to go to the Court of Errors and Appeals, setting forth the new matter, and seek a recall of the remittitur and a review. When an order of an appellate court goes with its remittitur to the court of original jurisdiction, it is there for the purpose of being carried into effect, and not for revision, correction or reversal. ...


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