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Conwell v. Conwell

Decided: December 12, 1949.

EDITH S. CONWELL, PLAINTIFF-RESPONDENT,
v.
JOHN H. CONWELL, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, whose opinion is reported in 3 N.J. Super. 575.

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

Oliphant

This is an appeal from a judgment of the Superior Court, Chancery Division, in a "matrimonial action," as defined in Rule 3:82(b). The appeal was taken to the Appellate Division under Rule 4:2-2(c) but was certified by the court on its own motion under Rule 1:5-1(a).

Two questions are presented for our determination, first, can support of a minor child of parents divorced in another state be ordered by the courts of this state against a resident of this state when the child is neither an inhabitant of, nor physically within this state, and further, can a judgment for support arrearages based on a decree of a sister state under the same circumstances be ordered; second, was the Florida decree in so far as it purports to provide for the support of the child a final decree so as to be entitled to full faith and credit in New Jersey, under the Federal Constitution?

Plaintiff and defendant were married in New York in September, 1939. One child, a daughter, was born of the marriage. She is now ten years of age and is in the custody of and lives with her mother, who admittedly is a resident of Richmond, Va. Defendant is a resident of this state.

In May, 1946, plaintiff and defendant were divorced by a final decree of the State of Florida, an appearance having been entered by the defendant. That decree, by its terms, awarded the care, custody and control of the minor child to

the plaintiff with reasonable visitation rights being granted the defendant. That final decree awarded no alimony to the plaintiff but required that the defendant pay to her the sum of $80 per month for the support of the minor child. Since the entry of that decree the defendant has made only one support payment of $40.

The complaint asks relief on two counts (1) to compel the defendant to provide suitable support and maintenance for the child and (2) for judgment in the amount of the unpaid accrued arrearages under the Florida decree, amounting to $2,840, with interest and costs. Plaintiff gave notice of a motion for relief pendente lite, the disposition of which was held pending decision on this appeal, and defendant served notice of a cross-motion to dismiss the complaint upon the ground it failed to set forth a cause of action upon which relief could be granted. Defendant's motion was denied and this appeal is from the order entered thereon.

I.

R.S. 9:2-1 et seq., an act concerning minors, was enacted as P.L. 1902, c. 92, and provides, inter alia, "After a divorce decreed in any other state or country, if minor children of the marriage are inhabitants of this state, the court of chancery, on the petition of either parent, or of a next friend in behalf of the children, such notice being given to parents as the court shall direct, may make such decree concerning their care, custody, education and maintenance as if the divorce had been obtained in this state * * *." An amendment, containing matters which do not presently concern us was passed in 1936. P.L. 1936, c. 247.

It cannot be questioned but that to predicate an action on this statute the child's residence in this state is a jurisdictional prerequisite. Goodman v. Goodman, 15 N.J. Misc. 716 (Ch. 1937). See Hachez v. Hachez, 124 N.J. Eq. 442 (E. & A. 1938); Brown v. Parsons, 136 N.J. Eq. 493 (E. & ...


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