Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c.
[20 NJSuper Page 231] The parties to this action were married in New Jersey on September 3, 1939, and thereafter lived together here until their separation on or about July 1, 1946. At some time thereafter, the exact time not being clear from
the record, except that it was prior to February 4, 1948, the wife became a resident of New York. Where the husband resided from the separation on is not definitely shown; an affidavit filed by him says that he remained amenable to service of process in Trenton, New Jersey, because of his employment there.
On February 4, 1948, with the advice and assistance of individual counsel, they entered into a written agreement which recited that they were living separate and apart because of irreconcilable differences and that the wife was about to commence suit for divorce. By this instrument they settled certain property claims and the husband agreed to pay her $50 a week and an additional $50 a month, both payments to be tax-free, during her lifetime or until she remarried, in settlement of her claim for "alimony, support and maintenance." In addition, Woodhouse bound himself to pay all doctor, dentist, hospital, nurse, drug, and medicine bills during the same period, and Mrs. Woodhouse agreed to apply any income she might receive from any source in reduction of the alimony or maintenance payments. It was also provided that in case either party applied for a divorce the agreement was to be in full settlement of their respective property rights and any claim for alimony.
On March 26, 1948, Mrs. Woodhouse obtained a decree of divorce in Nevada. The decree sets forth that the defendant had entered a general appearance in the action and was represented at the trial by his attorney; it makes a finding that the court had jurisdiction over the parties and of the cause of action and that the allegations of the wife's complaint are true. It grants a divorce on the ground of extreme cruelty and says that "the agreement of February 4, 1948, is adopted, ratified and approved and made a part of this decree by reference thereto." We pause to note that under the practice in New Jersey, where such an agreement is approved and made part of the judgment of the court, language is employed directing the husband to pay in accordance therewith. 12 New Jersey Practice (Herr, Marriage,
Divorce and Separation), p. 42, sec. 1489, Forms. This is the better course because it gives emphasis to the doctrine that the court is the final arbiter of a husband's alimony obligation and that an agreement between the parties will be adopted only where it represents the fair and equitable measure of that obligation. Lum v. Lum , 138 N.J. Eq. 198 (Ch. 1946). In some instances Nevada seems to follow our practice. Hooker v. Hooker , 130 Conn. 41, 32 A. 2 d 68, 71 (Sup. Ct. Err. 1943).
Thereafter, on May 6, 1948, Woodhouse remarried in Yardley, Pennsylvania, and lived there with his second wife from that date until May, 1951. Then they took up residence in Stockton, New Jersey, where they still reside.
On June 22, 1951, plaintiff, alleging to be a resident of the State of New York, brought this action for the recovery of arrearages under the Nevada decree which she claimed then amounted to $2,533.87. Defendant answered, denying the arrearages and setting up six separate defenses: (1) that the alimony agreement was void as against public policy; (2) it acquired no validity from its inclusion in the Nevada decree; (3) the divorce decree is void as having been made without jurisdiction of the subject matter; (4) or of the parties; (5) as a fraud upon the courts of Nevada and of New Jersey; and (6) the decree being void, it cannot serve as the basis for recovery in this action. Plaintiff moved to dismiss the six defenses. Prior to the argument of the motion a pretrial conference was held and an order entered, signed by the court and the attorneys, embodying the result thereof.
Subsequently the motion to strike was granted and the court said further, "there being no issue of fact, the plaintiff's motion for summary judgment will be entered." Judgment was entered for plaintiff and against defendant in the amount of $3,950.87, plus interest in the amount of $144.67. Defendant now appeals.
The first contention presented is that the court erroneously entered summary judgment. The point is well taken. Plaintiff's motion was simply to strike the six defenses. The
notice of motion did not ask for summary judgment and the affidavit filed in support thereof did not assert any fixed amount of arrearages. It alleged that after the entry of the Nevada decree and until February 1, 1950, the prescribed alimony was paid; thereafter and until the institution of this suit only partial payments were made, the deficiency not being specified, and since then no payments had been made. Not only was the total delinquency not asserted but it was impossible to compute the debt from the affidavit. In view of this situation and the nature of the motion defendant did not deal with the question of arrearages in his answering affidavit. Nevertheless judgment was entered in the amount referred to, which is neither the sum sued for in the complaint nor the amount claimed in the pretrial order nor an amount which is supported by the pleadings or any affidavit. Respondent's appendix includes a letter written by her attorney to the trial court, no copy of which was sent to the defendant, which contains the figures appearing in the judgment. Correspondence between the attorneys subsequent to the entry of judgment is attached to appellant's reply brief and appendix, and a letter from respondent's attorney indicates that part of the judgment was for medical expenses and taxes, which were not referred to in the complaint, pretrial order or affidavit. Moreover, as already indicated, the Nevada decree required plaintiff to credit against defendant's obligation any income she received. Neither in plaintiff's affidavit nor in her attorney's letter to the trial court is there any ...