On appeal from the Superior Court, Chancery Division.
For affirmance -- Chief Justice Vanderbilt. For affirmance in part -- Justice Heher. For modification -- Justice Oliphant, Wachenfeld, Burling, Jacobs and Brennan. The opinion of the court was delivered by Oliphant, J. Heher, J. (dissenting in part).
This is an appeal from a judgment of the Superior Court, Chancery Division, awarding alimony to plaintiff at the rate of $250 a month to commence on February 4, 1952, and denying relief with respect to arrearages alleged to be due under a decree of divorce granted in the State of Nevada. Because of the seeming conflict of jurisdiction with respect to the enforcement of the Nevada decree, a prior appeal was taken to this court with respect to certain restraints entered preliminarily in this case in an effort by the Superior Court to maintain the status quo pending the ultimate disposition of the cause on the merits.
The action was originally in two counts, one to establish the quantum of alleged arrearages under the Nevada decree; the second count sought a judgment in this State for the sum so adjudicated. The prior steps taken in Nevada and in this State to enforce these arrearages are set forth in full in the prior opinion of this court in 6 N.J. 170 (1951).
Prior to that appeal the complaint was amended to add a count with respect to the amount of support and maintenance,
6 N.J. 176, which might be payable in the future on the ground that the circumstances of the parties had changed; and a count seeking to recover, 6 N.J. 176, the arrearages that were due under the 1935 Nevada judgment. In our prior decision the cause was remanded, and we stated the issues remaining for determination were the quantum of alimony payable in futuro in keeping with what is said to be altered circumstances, the extent of the arrearages under the Nevada judgment and the agreement of the parties embodied therein constituting the subject matter of counts 3 and 4 of the complaint; and we then stated the essential question for decision is whether the court should defer to the Nevada court on the issue of the arrearages under the Nevada judgment.
At the time of that decision there was a default Nevada judgment for arrears in favor of the appellant, and likewise there was a judgment in the Superior Court based upon this Nevada judgment, also entered on default. The Nevada judgment was vacated by the Nevada court and the appellant, on the argument of the prior submission of this case to this court, consented to the vacation of the New Jersey judgment. The matter was remanded for the trial of counts 3 and 4 of the amended complaint.
On remand the trial court tried out these issues raised by the counts of the amended complaint, including the question as to whether or not the agreement which was incorporated in the Nevada decree of 1935 had been altered by a subsequent oral agreement between the parties. The court found as a matter of law and fact that the agreement had been validly altered and that the appellant, by having accepted the benefit of the arrangement between her and the cross-appellant over a period of years, could not now be heard to complain.
The trial judge, proceeding on the theory that the court had jurisdiction to award alimony as such under R.S. 2:50-37 (N.J.S. 2 A:34-23), took the usual testimony as to the changed circumstances of the parties, including appellant's testimony that due to increased cost of living and the income
tax that she now had to pay on the support money which she received, she was placed in necessitous circumstances. On this phase of the case he made an award of alimony at the rate of $250 a month starting February 4, 1952, the last trial date before him, and awarded counsel fee of $2,500 to the counsel for the appellant-wife. The count for arrearages was dismissed.
The appellant appeals from the judgment entered on all counts, and the respondent cross-appeals on the question of the allowance of alimony in the amount of $250 a ...