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Ferreira v. Lyons

Decided: November 28, 1958.

MILDRED LYONS FERREIRA, PLAINTIFF,
v.
FLORENCE E. LYONS, EXECUTRIX OF THE ESTATE OF FRANK J. LYONS, DECEASED, DEFENDANT



Hegarty, J.s.c.

Hegarty

[53 NJSuper Page 85] The pleadings and pretrial order herein reveal, chronologically, events upon which the present action is brought. The proofs offered make clear the existence of a claim that is to be resolved in the light of its own peculiar facts and circumstances when subjected to the provisions of the governing statute and applicable decisional law.

On July 18, 1934, in Chancery of New Jersey, Docket No. 98/136, plaintiff was granted judgment nisi for absolute divorce against Frank J. Lyons and therein was awarded custody of the infant child of the marriage, Jean Marie Lyons, born April 21, 1929, with support for herself and said child in the sum of $20 per week. Final judgment (divorce) was entered on December 10, 1934.

In 1937 plaintiff and child went to live in Florida. On September 1, 1942 plaintiff remarried. Frank J. Lyons married the defendant herein on March 23, 1936. The claim now being urged, and for which judgment is sought, is that Frank J. Lyons did not comply with the order of court respecting support for her and the said child, made only token payments on account thereof, and finally ceased to pay. No court action was taken by plaintiff after the payments were stopped and no contact was had by her with Frank J. Lyons for many years prior to his death which occurred on September 28, 1955. The last will and testament of Frank J. Lyons was dated December 2, 1945 and, after providing for the payment of debts, the defendant, Florence E. Lyons, was duly appointed therein executrix of the estate of Frank J. Lyons, deceased.

Plaintiff, on October 28, 1955, filed a claim with the said executrix for the sum of $14,361.55 with interest thereon, totalling the sum of $20,763.56, alleged to be due her. The defendant denied payment thereof.

The applicable statute is as follows:

N.J.S. 2 A:34-25.

"If after the judgment of divorce the wife shall remarry, the court shall not make any order as to the alimony of such wife except that upon application of the former husband, on notice and on proof of the marriage of the former wife after the judgment of divorce, the court shall modify any order or judgment as to the alimony of the former wife by vacating and annulling any and all provisions in any such order or judgment, or both, directing the payment of money for the support of the former wife."

There is no doubt that the provisions of the above cited statute are mandatory. Defendant's counterclaim seeks

the annulment and vacation of the order for support. The statute resting on public policy finds approval in our decisional law. In actions governed thereby the court is precluded from exercising its discretion and it must not refuse to invoke the statutory directive. The authority for this rule is found in Savoie v. Savoie , 26 N.J. Misc. 67, 68 (Ch. 1947), where the court said:

"The language of this enactment is very broad. It forbids the making of 'any order touching the alimony of such wife' and it imposes on the court a mandatory duty to vacate and annul 'any and all provisions in any such order or decree directing the payment of money for the support of the former wife.' By necessary implication, cancellation of arrearages is included in the broad sweep of the statute. This is so because before arrearages can be ripened into the form necessary for execution purposes an order of the Court is required. Such an order fixes the lump sum of the arrearages and upon application therefor, a Writ of Execution may be issued to collect that sum. If contempt proceedings are pursued, again, an order of the Court is required, fixing the full sum of the default and either committing the defendant to jail until payment is made, or directing payment in some other fashion, such as by installments. Since no order can be made after the remarriage, obviously there can be no judicial determination of a single lump sum due under the order or decree involved.

'The statute forbids the making of any order "touching the alimony," which of course includes orders * * * in contempt and all other orders ...


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