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Frank v. Frank

Decided: May 28, 1951.

ANNE FRANK, PLAINTIFF-APPELLANT-RESPONDENT.
v.
JOSEPH FRANK, JR., AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF JOSEPH FRANK, DECEASED, DEFENDANT-RESPONDENT-APPELLANT



On appeal from the Superior Court, Appellate Division, whose opinion is reported in 10 N.J. Super. 73 (1950).

For modification -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Ackerson, J.

Ackerson

On December 21, 1948, plaintiff instituted this suit against her husband in the Chancery Division of the Superior Court asserting three causes of action; i.e., (1) for separate maintenance; (2) for the recovery of arrearages of temporary alimony in the amount of $3,825, alleged to have accrued under an interlocutory order of a Circuit Court of the State of Florida, and (3) for money allegedly loaned to the amount of $4,000. Judgment was entered in our Chancery Division, upon the findings of an advisory master, dismissing the first and second causes of action, and sustaining the third to the extent of $1,200 for money loaned.

From this judgment plaintiff appealed to the Appellate Division of the Superior Court which affirmed the judgment below and additionally directed the defendant to pay his wife's costs, including a counsel fee of $500. Plaintiff thereupon appealed to the Supreme Court as of right, in view of the constitutional question involved, pursuant to Rule 1:2-1(a). The issue of separate maintenance is not before us on this appeal since, shortly after the entry of the judgment of the Appellate Division, the defendant died. However, the other issues are presented and the defendant's son, as his executor, has been substituted as defendant-respondent and has filed a notice of cross-appeal from so much of the judgment of the Appellate Division as awarded the wife her costs and a counsel fee against her husband.

The first question before us for review is whether or not the order of the Florida court, upon which the plaintiff's above-mentioned second cause of action rests, has the requisite finality to entitle it to recognition and enforcement in the courts of New Jersey under the full faith and credit clause of the Federal Constitution (Art. IV, sec. 1). In

determining the conclusiveness of such order we must look to the law of Florida, Kelly v. Kelly, 121 N.J. Eq. 361 (E. & A. 1936). The record, pertinent to this inquiry, discloses that in November, 1947, while the parties resided in Florida -- having moved there from New Jersey in September, 1947 -- the plaintiff brought suit against her husband in a Circuit Court of Florida seeking, inter alia, separate support and maintenance. The husband was served with process in the Florida suit and filed an answer denying all of the allegations of the complaint except the marriage, and on November 14, 1947, an order was made by the Florida court directing him to pay his wife, as temporary alimony, the sum of $75 per week, beginning November 15, 1947, until the further order of the court. Subsequently the husband was adjudged in contempt for failure to comply with the last-mentioned order and on December 2, 1948, he was further adjudged in contempt and ordered to purge himself thereof within five days by paying the arrearages of alimony under the aforesaid interlocutory order amounting to $3,825, or be confined to jail for 30 days. In the meantime the plaintiff's husband had sold his business in Florida and moved back to New Jersey. No other proceedings were had in the Florida suit and the merits thereof remain unadjudicated.

It is the foregoing contempt order of the Florida court, entered December 2, 1948, which forms the basis of the plaintiff's second cause of action herein for the arrearages of temporary support in the foregoing sum. In dismissing it our trial court held that the aforesaid order was not a final judgment of the Florida court entitled to constitutional protection as embodying a vested right, because the order was temporary and could be modified or vacated at any time until there was an adjudication of the merits of the cause which had not yet occurred, citing Duss v. Duss, 92 Fla. 1081, 111 So. 382 (Fla. Sup. Ct. 1926) as establishing the controlling Florida law to that effect. Our Appellate Division affirmed on the same ground. In the cited case the appeal by the wife was from an order of the Chancellor relieving

her husband from the payment of accrued temporary alimony and vacating a former interlocutory order requiring him to pay future alimony. As to the former the wife argued that she had acquired a vested right to the accrued temporary alimony and the court was without authority to extinguish her claim. Nevertheless the Florida Supreme Court rejected her contention and held that "* * * the enforcement of an interlocutory order for the payment of temporary alimony in this state, in the absence of intervening and effective appellate jurisdiction, remains so completely within the discretion and control of the court which rendered it that, at least until final decree, it may be annulled or modified, even as to pastdue and unpaid installments, * * *." The court further said: "Such an interlocutory order is not a final judgment for the payment of money, nor one upon which an execution will issue. Neither will it support an action for debt. All proceedings to compel the payment of temporary alimony allowed by the interlocutory order must be taken in the cause in which the order was granted." Cf. Kelly v. Kelly, supra, p. 362.

Plaintiff, while acknowledging the controlling force of the Duss case as of the time it was decided (1926), nevertheless, insists that the law of Florida, as thus pronounced, has been changed by a statute enacted in 1935. This statute (F.S.A. sec. 65.15) provides as follows:

"Whenever any husband and wife, heretofore, or hereafter shall have entered into any agreement providing for the payments for, or in lieu of, separate support, maintenance or alimony * * * or whenever any husband has pursuant to the decree of any court of competent jurisdiction been required to make to his wife any such payments, and the circumstances of the parties or the financial ability of the husband shall have been changed since * * * the rendition of such decree, either party may apply * * * for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the court * * * shall make such order and judgment as ...


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