Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
A summary of the significant antecedent events will serve to disclose the essence of the alleged cause of action here under review.
The parties were married on September 3, 1939. Discord caused them to separate on July 1, 1946. In 1948 they became persuaded that a reconciliation and the resumption of marital cohabitation were not achievable. Mrs. Woodhouse contemplated the institution of an action to obtain a dissolution of the marriage.
In pursuance of a mutual desire "to settle all questions as to their property rights between themselves," the parties caused to be composed an agreement in writing which they executed on February 4, 1948. Mrs. Woodhouse thereafter prosecuted a suit in the Second Judicial District Court of the State of Nevada in the County of Washoe in which on March 26, 1948 she was granted a final and absolute divorce by a decree which also adjudged "that the agreement of the parties, dated February 4, 1948 is adopted, ratified and approved and made a part of this decree by reference thereto."
By the terms of the agreement the present defendant covenanted, inter alia , to pay to the plaintiff commencing on March 1, 1948 and thereafter during her lifetime or until she remarried, the sum of $50 on the first day of each succeeding week and the additional sum of $50 on the first day of each calendar month.
The plaintiff instituted the present action on June 22, 1951 to recover from the defendant an alleged arrearage of payments owing to her under the decree of the Nevada court. The ensuing progression of the case is revealed by the decisions reported in 20 N.J. Super. 229 (App. Div. 1952), and 11 N.J. 225 (1953).
It is sufficient for immediate purposes to recognize that it is now the law of this case that the Nevada decree is valid and entitled to be accorded full faith and credit, and that the action was remanded to the trial court "solely for a proper determination of the defendant's indebtedness under the Nevada decree." The judgment challenged by this appeal determined the indebtedness as of March 1, 1953 to be $8,047.63.
The defendant's only criticism of the judgment is that the court failed in the calculation of the indebtedness to credit thereon the income realized by the plaintiff from sources other than from the defendant. That contention transports particular attention to paragraph 6 of the agreement embodied in the Nevada decree. It reads as follows:
"The second party (the present plaintiff) does by these presents agree, in the event that she in any year or years during the life of this agreement should realize any income from any source whatsoever other than from the first party hereto, she will accept a reduction in the periodic payments of money heretofore agreed by the first party to be paid to the second party -- said reduction to be in direct proportion to the sum of said income realized from any source or sources other than the first party."
Noticeably the paragraph specifies " any income from any source whatsoever other than from the first party hereto," and that the "reduction to be in direct proportion to the sum of said income realized from any source or sources other
than the first party." The repetitious characterization of the income in the one relatively short paragraph denotes a conscious regard for ...