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Kerkos v. Kerkos

Decided: October 24, 1951.


Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.


The defendant, Joseph Kerkos, appeals from an order of the Superior Court, Chancery Division, adjudging him in contempt for failure to comply with an order for support pendente lite.

The plaintiff, Loretta Kerkos, filed her complaint seeking an absolute divorce on the ground of extreme cruelty. On September 16, 1949, after service upon the defendant of a notice of motion and accompanying affidavit and the taking of testimony at the return day before the advisory master, an order for alimony pendente lite was advised and filed. On October 24, 1949, under the authority of Rule 3:84-4, the plaintiff filed an amended complaint changing the action from absolute divorce to separate maintenance. Complying with the order for temporary support the defendant made payments until December 15, 1950. On February 10, 1950, the plaintiff moved to increase the amount of support pendente lite and the defendant made a cross-motion to decrease the amount thereof. On February 21, 1950, the advisory master advised an order denying both applications and an order to that effect was accordingly entered. On January 26, 1951, being the return day of the plaintiff's notice of motion to adjudge the defendant in contempt for failure to make payment of the alimony pendente lite , the defendant conceding that no payment of temporary support had been made for six weeks prior thereto, the court adjudged the defendant in contempt, but directed that the warrant for commitment should not issue for the period of one week. On February 2, 1951, payment not having been made, a warrant of commitment was issued and the defendant, upon service thereof by the sheriff, paid the arrearages, counsel fee, taxed costs and

a fine of $10 to the State of New Jersey. At the argument of this appeal, it was conceded that the Chancery Division, following final hearing upon the principal issue, has found in favor of the plaintiff for separate maintenance under her amended bill of complaint.

The defendant contends (1) that a contempt proceeding in a matrimonial action cannot be instituted by a notice of motion, and the trial court was, therefore, without jurisdiction; (2) that the order of September 16, 1949, for alimony pendente lite became inoperative on December 20, 1950, when the cause of action for divorce was dismissed and the defendant could not be charged with violating it thereafter; (3) that the order of September 16, 1949, was improvidently granted and, therefore, cannot be the basis of a contempt proceeding; and (4) that the order adjudging defendant in contempt fails to comply with legal requirements and is fatally defective.

Under the circumstances here, the defendant's contention that the court was without jurisdiction to make the order of January 26, 1951, adjudging the defendant guilty of contempt because the application was made by notice of motion and not by order to show cause, is without merit. The contempt charged against the defendant and of which he stands convicted is a private or civil contempt and of the type of omission and not commission. Public contempts "are primarily concerned with a violation of the rights of the public as represented by constituted legal tribunals, are, therefore, criminal in nature and are attended by a degree of formality and preciseness beyond the required procedure in private contempts, which are primarily for the vindication of private rights and only incidentally involve a vindication of public authority." Nussbaum v. Hetzer , 1 N.J. 171, 174 (1948). The defendant contends that under the rules and the accepted practice, the contempt proceeding should have been initiated by an order to show cause supported by a petition and affidavits and that the failure to follow that procedure deprived the advisory master of jurisdiction to hear the

application, relying upon Nussbaum v. Hetzer, supra , where it is stated at page 174:

"* * * and the procedure by order to show cause, supported by petition and affidavits, responded to by answer containing certain admissions, followed by argument, was in accordance with the recognized practice."

In matrimonial causes the procedure to hold a person in contempt for failure to comply with the provisions of any order or judgment shall be in accordance with Rules 3:80-2 and 3:87-3. Herr on Marriage, Divorce and Separation , 12 N.J. Practice, sec. 1704, pp. 288, 289. Rule 3:80-2, as amended November 10, 1949, provides, inter alia:

"Every other contempt, whether of a criminal or civil nature, shall be prosecuted on notice, and if it occurs in an action, it shall be prosecuted in the action in which it occurs. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense and shall state the essential facts constituting the contempt charged. Whether the contempt charged is criminal or civil in nature, the notice may be given by an order to show cause; and the person charged with contempt may, not later than 1 day before the return day of such an order, or within such time as the court may allow, serve an answer or an answering affidavit, or he may plead orally at the hearing. In any cause in which the court determines that the contempt charged may be criminal in nature,

(a) the notice may be given orally by the judge in open court in the presence of the person charged with contempt or by an order of arrest, or, as ...

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