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Whitehead v. Villapiano

November 28, 1951

FLORENCE A. WHITEHEAD, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
JOSEPH G. VILLAPIANO, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.

Brennan

[16 NJSuper Page 418] Defendant appeals and plaintiff cross-appeals from a judgment entered in the Chancery Division in this action upon a Nevada judgment. The parties were divorced in Nevada in 1932. The decree

was obtained by the defendant husband after the parties had made an agreement that "in the event a divorce is granted" the decree should provide, and it does, for stipulated monthly alimony for the wife and, to secure the payment of the same, that the husband at his expense "shall carry" a $10,000 life insurance policy naming the wife as beneficiary. The wife appeared in the Nevada action by her attorney. We are not informed where the parties lived before the suit was brought. The decree restored to the wife her former name and she now resides in Virginia.

In 1937 the parties made a written agreement reducing the amount of the monthly alimony payments. Defendant paid the reduced amounts until the agreement expired by its terms on July 1, 1942. He paid plaintiff nothing after that date; and he never secured the required life insurance.

Plaintiff made no demands for payments or that defendant carry the insurance until she brought this action in June, 1950. She supports her complaint solely upon the contention made in the pretrial order that "such judgment is entitled to full faith and credit in the courts of our state as directed in Article IV, Section 1, of the United States Constitution, as well as by the Act of Congress of May 29, 1790, as amended and supplemented."

The first count asks judgment for arrearages, including the difference between the payments made under the 1937 agreement and the amounts called for by the Nevada decree. The second count asks that defendant be ordered to obtain and to deliver to plaintiff the life insurance policy ordered by the Nevada decree "or in lieu thereof to furnish other security or collateral to effectuate the terms thereof." An allowance for counsel fee is also applied for.

The trial court ruled that it was obliged to accord full faith and credit to the Nevada decree. Accordingly, the entry of a judgment for arrearages was directed, limited, however, to the accruals since July 1, 1942, the expiration date of the 1937 agreement, and defendant was ordered to provide a life insurance policy in accordance with the terms

of the Nevada decree. A counsel fee was denied on the ground that the court was without authority to make such allowance as the action is not a "matrimonial action" as defined in Rule 3:82(b).

Because the Nevada decree recites that the alimony awarded and the provision to secure its payment gave effect to an agreement of the parties that the same should be ordered "in the event a divorce is granted," defendant contends that full faith and credit was to be denied the decree under the decision in Staedler v. Staedler , 6 N.J. 380 (1951). That case held that New Jersey was not obliged to credit a Florida decree divorcing "married domiciliaries" of this State when it appeared that an agreement between the parties made in New Jersey before the husband went to Florida to institute the action against the wife conditioned its provisions for the wife's support upon her entry of "any appearance required in the divorce proceeding" and that the support provisions should become inoperative should she "oppose said divorce proceedings," and the husband retained and paid the fee of the attorney whose appearance was entered for the wife and who admitted in her behalf the jurisdictional facts alleged in the husband's complaint and performed only perfunctorily at the hearing.

The Supreme Court found that "the purpose of the agreement was to suppress any inquiry that would disclose the fraud and make a mockery of any appearance by the respondent (the wife) in the Florida proceeding, and that it was not intended that any divorce proceeding between the parties should be an adversary proceeding"; that "the illegality of a contract is to be determined by the law of the place of the contract" and "this agreement is obviously contrary to the public policy of this State and is likewise contrary to the public policy of the State of Florida"; that the appearance of the attorney in the Florida proceeding "ostensibly on behalf of the wife was an appearance by him as agent for the husband who paid for his services and controlled his actions." Accordingly, it was held that the decisions of the

United States Supreme Court in Davis v. Davis , 305 U.S. 32, 59 Sup. Ct. 3, 83 L. Ed. 26 (1938), Sherrer v. Sherrer , 334 U.S. 343, 68 Sup. Ct. 1087, 92 L. Ed. 1429 (1948), and Coe v. Coe , 334 U.S. 378, 68 Sup. Ct. 1094, 92 L. Ed. 1451 (1948), did not require that the courts of this State give ...


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