On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J.
This is an appeal in a matrimonial action from a judgment of the Appellate Division which affirmed a judgment of the Superior Court, Chancery Division, which had dismissed the appellant's complaint on the ground of lack of jurisdiction of the subject matter. The appeal was certified by this court pursuant to R.R. 1:10-2(d)(e).
The complaint invoked the jurisdiction of the Superior Court, Chancery Division, in reliance on N.J.S. 2 A:34-23, which provides as follows:
"Alimony; maintenance; custody and maintenance of children; security; failure to obey order; sequestration; receiver; modification of orders
Pending any matrimonial action brought in this state or elsewhere, or after judgment of divorce or maintenance, whether obtained in this state or elsewhere, the court may make such order as to the alimony or maintenance of the wife, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of
such orders. Upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with any such order, the court may award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just; or the performance of the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances may require." (Italics supplied.)
In so invoking the jurisdiction the plaintiff-appellant sought to enforce the provisions relating to alimony and support contained in a decree of divorce a vinculo obtained by her in the Second Judicial District Court of Washoe County, State of Nevada, on the ground of extreme cruelty, and entered on March 26, 1948. A separation agreement which had been voluntarily entered into between the parties prior thereto on February 4, 1948, in New York, New York, was, in the words of the decree, "adopted, ratified and approved and made a part of this [the] decree by reference thereto." The Nevada proceeding was a full adversary proceeding in which the defendant-respondent filed an answer, appeared through his own counsel and fully contested the action.
As is usual in this type of case the parties availed themselves of the Nevada jurisdiction by meeting the requirements of that state as to residence and submitted proofs to satisfactorily create a legal fiction of domicile. Then following the usual flight pattern of such migrants they almost immediately left the State of Nevada. The respondent returned East and on May 6, 1948 re-married in Yardley, Pa., and lived there until May 1951, when he took up residence in Stockton, N.J., where he now lives with his second wife.
The respondent complied with the terms of the decree relative to alimony until March 1950, when he reduced the payments without the consent of the appellant and later, on or about June 22, 1951, he entirely stopped the payments. Since 1950 he has resolutely and without scruple ignored these provisions of the Nevada judgment and with diligence
and ingenuity has resisted the enforcement of his obligations under the decree in ...