On appeal from the Superior Court, Chancery Division.
For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Oliphant, J.
[11 NJ Page 108] This is an appeal by the plaintiff-appellant from a judgment of the Chancery Division of the Superior Court which vacated a decree of separate maintenance entered in 1927 in favor of the plaintiff-appellant and against the respondent. The respondent cross-appeals the award of a counsel fee to the plaintiff-appellant in this proceeding.
These appeals, while pending in the Appellate Division, were certified here on our own motion.
On May 18, 1927 a final decree was entered in an action for separate maintenance in favor of the appellant which required the respondent to provide a weekly support of $50 to her and their infant son. Subsequently, in 1941, this order was modified so as to provide for the payment of $45 per week, with $41.50 allocated to the support of the wife and $3.50 to the infant son. At that time the child was 15 years of age. In 1943 respondent instituted a divorce proceeding in the State of Nevada against the appellant and a final decree was entered in his favor in that cause.
On April 18, 1944 respondent filed the petition in this present cause in the former Court of Chancery seeking to dismiss the bill of complaint for maintenance which had been filed as aforesaid in 1927, and to vacate all orders of support made thereunder.
The basis of the petition was the entry of a decree of divorce a vinculo in the State of Nevada on December 4, 1943, which purported to dissolve the marriage between the parties and approved an alleged agreement between the parties wherein it was asserted that all the rights of property of the parties and the right of the appellant to alimony, separate support and maintenance, past, present and future were settled by the agreement. The terms of the agreement were apparently incorporated in the order and called for the immediate payment to the appellant of $3,000 in cash, together with a note for $2,000 payable three years from date with interest, and payment to the appellant of $45 a week for the support of the appellant and minor child until such time as the child enlists in the army or arrives at the age of 18. Thereafter the respondent was to pay the appellant the sum of $35 a week for a period of five years from the date of the order or until death or re-marriage of the appellant. The decree further said that the decree of the Court of Chancery heretofore in existence was abrogated and declared null and void.
The appellant resisted this application by an answer to the petition in which she contended the Nevada decree was obtained by fraud upon her, upon the Nevada court and upon the Court of Chancery here in New Jersey, and she filed a cross-petition seeking a determination that the Nevada court was without jurisdiction and that its decree was invalid and had no force and effect upon the decree of the Court of Chancery in the maintenance action. Subsequently, the appellant made an application to hold the respondent in contempt for failure to comply and make payments under the decree for maintenance in this State. This application was held for final hearing.
When the petition of respondent came on for hearing the advisory master determined the effect of the Nevada decree solely on the basis of affidavits and cross-affidavits and held in favor of the respondent on the ground that the Nevada decree was unassailable under the full force and credit clause and binding upon the courts of New Jersey. Isserman v. Isserman, 23 N.J. Misc. 174 (Ch. 1945). On appeal from this determination the Court of Errors and Appeals reversed and remitted the cause for the taking of oral proofs in open court "on the issue as to whether the defendant was in fact and in law domiciled in Nevada at the time the divorce in that state was procured." Isserman v. Isserman, 138 N.J. Eq. 140 (E. & A. 1946).
Upon the rehearing so ordered the advisory master refused to allow the plaintiff-appellant to take the depositions of out-of-state witnesses bearing upon the jurisdiction of the Nevada court, the bona fides of the residence of the respondent in Nevada, and the fraud alleged to have been practiced upon her and the courts of both states. He determined that under the decision of the United States Supreme Court in Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948), the appearance by the wife in the Nevada court constituted a submission to its jurisdiction and hence the testimony was immaterial and of no consequence. This determination was again appealed and it came before this
court, 2 N.J. 1 (1949), and we held it was improper for the advisory master to have ignored the mandate of the Court of Errors and Appeals merely because in his opinion a decision of the United States Supreme Court had affected a change in the applicable law. We felt that the factual issue raised by the pleadings should be established by testimony in the record. Further, we made it clear that we did not consider that the Sherrer opinion necessarily foreclosed our courts in a case such as the instant one from inquiring into the facts of residence and jurisdiction independently, ...