On motion to dismiss appeal.
Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Respondent moves to dismiss appellant wife's appeal from a Chancery Division order modifying the final decree for separate maintenance that had been entered in her favor in 1939, on the ground that the appeal was not taken and filed within the 10-day time limitation provided by R.R. 1:3-1(c).
The parties were married in 1918 and had four children. The wife filed a bill for separate maintenance in 1936. The matter went to final hearing and was decided in her favor, the advisory master finding that her husband had abandoned
her without justifiable cause and had refused and neglected properly to maintain and provide for her and the children of the marriage. Adams v. Adams , 17 N.J. Misc. 234 (Ch. 1939). The final decree of separate maintenance, entered in our former Court of Chancery on October 20, 1939, provided that respondent pay appellant $200 weekly for the support and maintenance of herself and the four children. That sum was regularly paid down to December 20, 1957, despite the fact that all of the children had become of age during the intervening period and, in fact, two of them had died.
On November 20, 1957 respondent husband filed a notice of motion in the Chancery Division to modify the final decree so as to provide only for the reasonable support and maintenance of the wife. The matter came on for hearing in regular course, and eventually the Chancery Division judge, after filing an opinion, signed the order of September 5, 1958 here under appeal. That order modified the separate maintenance decree of 1939, nunc pro tunc , and allocated the weekly payment of $200 as follows: $75 a week to appellant for her support and maintenance, and $31.25 for the support and maintenance of each of the four children; and then further modified that decree by ordering respondent to pay appellant $75 a week for her support and maintenance, commencing as of December 20, 1957, and vacating the provision for payment of $31.25 a week for each child.
Appellant served her notice of appeal upon respondent's attorney on October 15, 1958 and filed it with the court the next day -- 41 days after entry of the order. Her attorney ordered a transcript of the Chancery Division hearing and subsequently filed an appendix and brief on November 26, 1958.
It was not until December 3, 1958 that respondent filed his motion to dismiss the appeal, the asserted ground being that the order of September 5, 1958 was an interlocutory order modifying the final decree of our former Court of Chancery. Respondent contends that the ten days which appellant had to appeal an interlocutory order (R.R.
1:3-1(c)), as well as the 30-day period within which she might have applied for an extension of time to appeal (R.R. 1:27 B(d)), had run, thereby vesting respondent with an absolute right to have the entire matter terminated, subject only to the continuing power of the Chancery Division to deal from time to time thereafter with the amount he should pay his wife by way of support, in the light of her needs and the financial circumstances of the parties.
Although the question has never been expressly decided in this State -- perhaps because the answer is so obvious -- the decision in Martindell v. Martindell , 21 N.J. 341 (1956), was based upon the unquestioned assumption that the modification of a support decree is a final judgment for purposes of appeal. In that case defendant filed notice of appeal eight days beyond the 45-day limit provided by R.R. 1:3-1(b) for final judgments. The Appellate Division refused to grant him an extension of time to appeal under R.R. 1:27 B(d). The Supreme Court held that defendant's application should have been granted under the particular circumstances present, and accordingly denied plaintiff's motion to dismiss the appeal and proceeded to decide the case on the merits. Had the court in Martindell considered as interlocutory the Chancery Division order modifying the alimony provision of the original divorce decree, there would have been no reason for relaxing the normal ten-day limit, or indeed for extending it 30 days, because more than 40 days had elapsed since entry of the order.
We consider the assumption in Martindell well founded. That Martindell dealt with the alimony provision of a divorce decree, now covered by N.J.S. 2 A:34-23, and the present case with separate maintenance, the subject of N.J.S. 2 A:34-24, is of no significance. The two sections are cognate. Turi v. Turi , 34 N.J. Super. 313, 320 (App. Div. 1955). Only a misconception of the basic theory of what ...