Eastwood, Bigelow and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The plaintiff, Lenora Janet Green, seeks to vacate the judgment of dismissal by the Chancery Division of her suit for separate maintenance and custody of two infant children of the marriage, entered on October 24, 1950, from which no appeal was taken. Her petition, filed November 19, 1951, alleges that the defendant secured the dismissal of the plaintiff's former action by fraud, in that he planned throughout the pendency of that suit, to leave the jurisdiction of this State, despite his aforesaid affidavits to the contrary, "to go to a jurisdiction which did not require a long residence before the institution of a suit for divorce, and attempt to obtain a divorce from the plaintiff in such jurisdiction, and that he did not actually intend to remain there, and thus defeat, circumvent or impede the plaintiff's rights to support of herself and said children and her custody of said children, and thereby committed a fraud upon this court"; further, he "planned to make the aforesaid contributions for the support of plaintiff and said children only in order to defeat the plaintiff's suit and to stop making said contributions as soon as he thought it was safe to do so, * * *"; further, "that the defendant went to Florida as aforesaid and instituted said suit for divorce in Florida, as aforesaid, in furtherance of the plan had by him throughout the pendency of this suit, and thereby committed a fraud upon this court."
The pertinent part of the statute effective at the time of the entry of the aforementioned judgment of dismissal, reads as follows:
"If a husband, without justifiable cause, shall abandon his wife or separate himself from her and refuse or neglect to maintain and
provide for her, the court may order suitable support and maintenance to be paid and provided by the husband for the wife and her children, or any of them, by their marriage, or to be made out of his property and for such time as the nature of the case and circumstances of the parties render suitable and proper in the opinion of the court. * * *" R.S. 2:50-39; now N.J.S. 2 A:34-24.
At the time of the hearing the parties were then living separate and apart and the defendant was making contributions for the support of his wife and children in conformity with his agreement at the time he left her. The trial court at the conclusion of the testimony, stated:
"* * * The parties made an agreement or an agreement to separate. The terms of the agreement were that he was to pay $30.00 a week for the support of the wife and child at home, and also contribute the $50.00 towards the school for the other child. At the time, the writ of ne exeat was issued, the plaintiff had been receiving the $30.00 a week. Also there was no cause of action on the statutory separate maintenance grounds at the time this complaint was instituted."
Thereupon, the judgment of dismissal was entered, wherein the court found, inter alia , "* * * that the plaintiff failed to prove that the defendant, without justifiable cause, abandoned the plaintiff and that the defendant refused and neglected to maintain and provide for her; * * *" and, "Ordered that the Complaint be and is hereby dismissed without further costs to the defendant; * * *."
The plaintiff's remedy was by way of appeal from the aforementioned judgment of dismissal, but no appeal was taken. When the instant proceeding was instituted, such an appeal was out of time. Rules 1:2-5, 4:2-5. Winberry v. Salisbury , 5 N.J. 240 (1950) and In re Pfizer , 6 N.J. 233 (1951).
In the instant proceeding, the plaintiff asserts that the defendant, by continuing his payments for support and his assurance to the court, in the earlier action, made in an affidavit wherein the defendant sought the dismissal of a writ of ne exeat , that he never intended, nor did not intend, "to leave the State of New Jersey, or to evade the jurisdiction of
this court," committed a fraud upon the court causing it to enter the judgment of dismissal; that his subsequent departure from this jurisdiction to go to Florida for the alleged purpose of securing a divorce, the subsequent institution of such proceedings, resulting in his obtaining such a decree of divorce in that state, were evidential of the defendant's fraudulent state of mind at the time of the dismissal of the maintenance suit. While the Florida decree contains no provision for the maintenance of the ...