Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Stephen A. Hnath appeals from a judgment entered by the Superior Court, Chancery Division, dismissing his complaint against his wife, Anna K. Hnath, for an accounting of property, and granting judgment on her counterclaim for separate maintenance.
The parties were married on October 14, 1923 but have not lived together since 1948. Litigation between the parties started in 1949 and it is necessary to give a chronological sequence of events since then properly to consider the present appeal. In October 1949 the plaintiff filed a complaint for divorce on the grounds of desertion. An answer and counterclaim was filed by the wife for separate maintenance, and on November 18, 1949 an order was entered awarding the wife $10 per week for her support and maintenance pendente lite. Subsequent to the filing of the complaint, the plaintiff's original attorney was disbarred and in November 1950, by letter, plaintiff requested his second attorney to take whatever steps were necessary to dismiss the divorce proceedings. In December 1950 a third attorney appeared for the plaintiff on a motion by the court to dismiss the complaint for lack of prosecution. Rule A-11 as amended, now R.R. 1:30-3. In June 1950, pending hearing of the motion, defendant served a notice of an application for permanent support and maintenance to be reserved in the order of dismissal. On August 7, 1951 an order was entered dismissing the complaint for lack of prosecution and further providing that the plaintiff pay to the defendant $15 per week from June 22, 1951 "until further order of the court." This order made
no other disposition of defendant's counterclaim. The entry of the order was consented to by the plaintiff's attorney "as to form and substance." Plaintiff made the payments so ordered regularly thereafter.
On October 21, 1955 the plaintiff's present attorneys applied by motion for an order to reopen and set aside "the order for permanent alimony and voluntary dismissal," which was entered on August 7, 1951. In support of his motion, the plaintiff submitted his affidavit explaining that he had just cause for divorce and would have proceeded to trial except for the disbarment of his attorney and the death of a principal witness. His affidavit stated facts purporting to show a change of financial circumstances of both parties, that his income had not increased, and that defendant not only received the $15 per week paid by him, but was employed and receiving a salary, so that his net weekly income was less than the total weekly amount she was receiving. He further listed and disclosed his weekly expenses, debts for dental and medical bills, and averred he had no assets except a 1949 automobile used for transportation to his work. He stated that he and his wife had a joint savings account accumulated from his money only, and that on November 4, 1949 his wife withdrew the entire balance of $912.96 from the account and redeposited it in another account in her sole name. He alleged that the defendant thereafter consistently made deposits in her savings account so that the balance as of July 6, 1955 was $4,177.02. He also stated that she appropriated to herself $3,000 of savings bonds which he had purchased and had caused to be issued in their joint names. His affidavit made no mention of any efforts on his part to recover any of the moneys in the savings account or the bonds.
The defendant met the plaintiff's application by a motion to dismiss supported by an affidavit. She denied plaintiff's charge of desertion, but admitted she is employed and earns a net salary of $40 to $47 each week. She accounted for her possession of the savings account by the cashing of bonds when they fell due, savings out of earnings, and the accumulation
of interest and support payments. She denied that plaintiff ever owned any bonds, but admitted that in 1949 they owned $1,522 in bonds jointly, much of which came from her earnings and savings.
The plaintiff's application to set aside the dismissal of his divorce complaint and to reopen was denied on November 18, 1955 and on his application to set aside the order for permanent support, the order was amended reducing the support payment to $10 per week. The order reserved plaintiff's right to make further application to dismiss the order for permanent support and defendant's counterclaim (in the 1949 suit), as well as the amending order for support.
On November 23, 1955 the plaintiff again gave notice of motion to dismiss the counterclaim for lack of prosecution, and to vacate the order for support. Defendant then gave counter-notice of an application for an order reserving to her the provision for support in any order of dismissal of the counterclaim which might be granted to the plaintiff. Both motions were supported by affidavits stating essentially the same facts disclosed in their prior affidavits. The motions resulted in an order on December 5, 1955 dismissing the counterclaim for lack of prosecution and denying support moneys to the defendant on the ground that it appeared that "the defendant is not at this time in need of support." No appeal was ever taken by either party from any order then or theretofore entered.
We now come to the proceedings which give rise to the instant appeal. On January 20, 1956 plaintiff filed an independent equity action for an accounting. The complaint seeks a judgment for the proceeds of the savings bonds, as well as the moneys deposited in a joint bank account alleged to have been converted by the defendant to her own use, and for all the support moneys paid to her under the order of August 7, 1951, which the plaintiff charges were illegally ordered, never lawfully owing, and paid by plaintiff under misconception of his rights. On ...