Davidson, Hughes and Pindar. The opinion of the court was delivered by Pindar, J.s.c. (temporarily assigned).
[32 NJSuper Page 335] Two questions are presented on this appeal: (1) The propriety of the entry of a judgment for accumulated arrearages for support
and maintenance under a foreign judgment; and (2) the authority for the trial court to award counsel fees to respondent.
Respondent filed her complaint herein in two counts: (1) for judgment to invalidate in New Jersey the effect of a divorce decree entered by the Ashley County Chancery Court, State of Arkansas, sometime in July 1946, at the suit of appellant; and to restrain use of said decree in New Jersey, or any other jurisdiction, specifically as to any force or effect upon a certain interlocutory judgment of divorce, which included therein an adjudication of support and maintenance for respondent and a child of the marriage in the aggregate sum of $20 per week, entered February 27, 1948, by the Supreme Court of the State of New York (County of Kings); and (2) for judgment of arrears due under the said New York judgment from the date thereof (said to be $5,720), with interest and costs of suit.
The parties were married in New York State in 1925 where they were domiciled until 1942. About 1931 appellant joined the Immigration Service of the Federal Government and after 1942 was assigned at various locations in Massachusetts, Louisiana, California, and re-assigned to New Orleans, Louisiana. They resided together at all those places, except California, with the child until about June 1945. Then they separated because of some marital disruption, after which respondent returned with the child to New York, residing there until about July 1946. An attempted reconciliation in Louisiana, under disputed circumstances, failed and respondent again went to New York to live (leaving the boy with appellant) where she has since about August 1946 continued to reside. (The son, now 22 years of age, has lived with respondent in New York since September 1946.)
Whereupon, appellant instituted his divorce suit in Arkansas grounded on desertion. Respondent did not participate in that proceeding. The said Arkansas court entered its decree of dissolution and provided for the child's support. Shortly after (August 31, 1946) appellant remarried and
cohabited with his new wife in Louisiana, Texas, and finally (upon assignment of appellant to Philadelphia, Pennsylvania) in New Jersey, wherein appellant was served herein and where they still reside. This divorce and re-marriage gave rise to respondent's New York action (May 1947). In that suit she charged appellant with adultery (with his second wife), on which ground the aforesaid interlocutory judgment was entered, including the provision for support. Appellant did not defend that action.
By answer filed herein appellant denied respondent's right to relief under both counts, and as separate defenses set forth: (a) that the Arkansas decree was entitled to full faith and credit in this court; (b) that the Arkansas decree was res judicata , in a priority sense, over the New York judgment; (c) that the New York judgment was illegal for lack of due process under the Fourteenth Amendment of our Federal Constitution, in that appellant was not personally served within the State of New York; and (d) that the decretal provision by the Arkansas court for support for the child "in a reasonable amount" was complied with and ample therefor. In other words, appellant's resistance was based upon the validity of the Arkansas marital dissolution as a complete bar to the New York judgment.
Whatever was the reason for respondent to demand under the first count an adjudication here of invalidity of the Arkansas decree, or for that matter to have labored the trial court in that respect, there was no necessity therefor. Undisputably, neither party was ever domiciled in New Jersey during any period of their marriage, nor when the Arkansas court rendered its decree, in which situation the courts of this State would have no concern with their marital res. Also, it follows that appellant's contentions that the Arkansas decree was res judicata here and that full faith and credit be extended to it by this court were untenable.
Our Supreme Court, on the opinion by Justice Wachenfeld in Morrissey v. Morrissey , 1 N.J. 448 (1949), at page 452, held:
"* * * A complainant has no legal status in this State to attack the validity of a divorce decree of a sister state in a direct proceeding instituted for that specific purpose when at the time the decree of divorce was rendered neither the complainant nor the other spouse was a resident of this State. * * *" (Citing Floyd v. Floyd , 95 ...