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Sarner v. Sarner

Decided: May 27, 1957.

JULIA SARNER, PLAINTIFF-APPELLANT,
v.
SIDNEY SARNER, DEFENDANT-RESPONDENT



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

[45 NJSuper Page 218] The plaintiff, Julia Sarner, appeals by leave of court from those provisions of an order, dated September 6, 1956, granting to the defendant the right to

amend his answer by adding a counterclaim for moneys withdrawn by the plaintiff from their joint funds, requiring her to deposit moneys so withdrawn, denying plaintiff's application for a writ of sequestration and the appointment of a receiver, and enforcement of an adjudication of contempt against the defendant until plaintiff's deposit of the moneys withdrawn.

The present action was instituted by a complaint in three counts, seeking a judgment of either separate maintenance, absolute divorce or limited divorce. The defendant's answer denied the allegations of the complaint. Shortly thereafter, on January 13, 1956, there was entered an order to show cause why the defendant should not be compelled to pay for the support and maintenance of the plaintiff, and costs, counsel fees and suit moneys, pendente lite. Both parties filed affidavits and the matter came on for argument, but was not resolved, the court suggesting to counsel that the parties might possibly agree upon the amounts to be paid. Such an agreement was reached, resulting in an order, dated May 9, 1956, "without prejudice to either party," requiring the defendant to pay $250 a week for temporary support, nunc pro tunc as of January 30, 1956, together with $1,500 temporary counsel fee and suit money.

Defendant having paid the $250 weekly support only through April 9, 1956, the plaintiff on July 11, 1956 obtained an order to show cause why the defendant should not be adjudged guilty of contempt for his failure to comply fully with the order of May 9, 1956. Again, counter-affidavits were filed. These contempt proceedings resulted in an order, entered July 27, 1956, requiring the defendant to pay $50 per week on account of arrears, in addition to the $250 weekly temporary support, a total of $300 a week. On August 3, 1956 notice was given to the plaintiff of defendant's application to vacate the orders of May 9 and July 27, and to adjudicate the ownership of certain moneys withdrawn by the plaintiff from their joint account and joint custody, and to have such moneys applied against any order of support made in favor of the plaintiff. The plaintiff

countered with another order to show cause, entered August 8, 1956, to have the defendant adjudged in contempt for failure to comply with the prior orders. The result was the entry on September 6, 1956 of the order now under appeal, which provided inter alia: (1) that the defendant be adjudged guilty of contempt for having willfully violated the orders of May 9, 1956 and July 27, 1956; (2) that he be committed to the county jail and there remain until he shall pay to the plaintiff the sum of $5,000 and costs; (3) upon representation that the defendant was desirous of complying with the provisions of the prior orders, that no warrant issue for his apprehension unless he failed to pay the $5,000; (4) that the defendant be granted leave to amend his answer by adding a counterclaim; and (5) that the plaintiff deposit in their joint account the moneys she withdrew therefrom pending determination of its ownership and that coincidentally with the deposit, the defendant pay to the plaintiff the $5,000, for non-payment of which he had been adjudged in contempt.

We recite events subsequent to the entry of the order of September 6, 1956 to bring the history of the proceeding up to date. The notice of appeal was filed on October 24, 1956. On November 7, 1956 Sarner was again adjudged guilty of contempt for willfully violating the orders of May 9, July 27 and September 6, and was ordered committed to the county jail until he paid the plaintiff the sum of $6,000 then due, notwithstanding that the plaintiff had not yet made the deposit directed by the order of September 6, 1956. It was further ordered that a writ of sequestration issue against the defendant's assets, to be discharged if he gave a bond in the sum of $6,000. The bond was posted, and on November 19, 1956 the defendant paid the $6,000 to the sheriff, thus purging himself of the contempt. Shortly thereafter he paid to the plaintiff's attorney the sum of $3,250 as additional payment for temporary support. These payments are evidenced by photostatic copies of the checks.

The substance of the grounds of appeal is (1) that the defendant should not have been granted the affirmative relief

of permitting him to amend his answer to include a counterclaim while he was in contempt of court, nor (2) should the issuance of the warrant for his arrest for contempt have been conditioned upon the plaintiff's deposit of the moneys she had withdrawn from the joint account. On oral argument of the appeal the plaintiff's attorney agreed that Sarner had paid the moneys he had been ordered to pay and has thus purged himself of the contempt.

We shall first consider the second point.

We are of the opinion that the defendant should have been compelled to purge himself unconditionally of his contemptuous conduct. We disapprove of the provision of the court order which, in substance, held in abeyance enforcement of the contempt order until such time as the plaintiff should make the deposit directed by the same order; thus, in effect, excusing the defendant's continued contempt until that time. The contempt order had for its purpose the coercion of compliance with the earlier support orders, McClung v. McClung , 33 N.J. Eq. 462 (Ch. 1881); it ought not be used by the court for the purpose of supplying a sanction for the enforcement of an order addressed to the adverse party in reference to a totally unrelated controversy. Accordingly, we find that the order under appeal ...


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