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Tellian v. Healy

Decided: March 25, 1960.

FRANCES M. HEALY TELLIAN, PLAINTIFF,
v.
THOMAS F. HEALY, DEFENDANT



Halpern, J.s.c. (temporarily assigned).

Halpern

This motion is by the defendant to compel plaintiff to answer certain interrogatories seeking information with respect to her employment and income; details with respect to her present husband's employment, income, and contributions, if any, for the support of the children involved; and the details of an agreement made pertaining to support of the children.

Before disposing of the motion a brief recital of the facts leading up to the present suit is necessary for an understanding of the problem.

In 1955 plaintiff secured a final judgment of divorce from defendant in the State of New York. Defendant does not raise any objection to the validity of the New York judgment insofar as it adjudicated their marital status. The judgment, among other things, required the defendant to pay plaintiff $20 per week for the support of their two infant children. Defendant claims he has been paying plaintiff about $50 per month, pursuant to a separation agreement made in 1954. This suit is by plaintiff to recover the difference allegedly due on the judgment. Both parties have remarried and reside in New Jersey.

The defendant's answer denies all of the allegations in the complaint except that he admits he is now a New Jersey resident. By way of separate defense he contends that the State of New York had no personal jurisdiction over him; he had no knowledge of the final judgment of divorce until November 1959; plaintiff made no demand upon him for support, other than the amounts which he was voluntarily paying, until November 1959; and since plaintiff has elected to accept such voluntary payments she is now estopped from recovering any arrearages.

Without presently disposing of the issues raised on this motion concerning the interrogatories heretofore mentioned, or the defenses in the answer, several other issues

should first be disposed of. On the assumption that the proofs will show a New York judgment of divorce which provided for support of the children of the marriage:

(1) Does the Law Division of the New Jersey Superior Court have jurisdiction to entertain the present suit for arrearages?

(2) Are the support provisions in the New York judgment entitled to full faith and credit?

If both issues are decided in the negative, then the motion concerning the interrogatories becomes moot at this time.

I am of the opinion that the Law Division of the Superior Court should not take jurisdiction of this action and that the present action should be transferred to the Chancery Division. I am of the further opinion that the New York judgment, insofar as it makes provision for the payment of alimony for the support of the children, is not entitled to full faith and credit, under the Federal or State Constitutions. U.S. Const. Art. 4, ยง 1.

New Jersey is only required to give full faith and credit to past due installments of alimony on a foreign decree where, under the law of such foreign state, the past due installments are absolute, irrevocable and vested. Woodhouse v. Woodhouse , 15 N.J. 550 (1954); O'Loughlin v. O'Loughlin , 12 N.J. 222 (1953); N.J.S. 2 A:34-22. Under New York law past due alimony is vested when suit is brought for arrearages on the original judgment in New York and judgment is entered thereon. Until such is done accrued arrearages are subject to retroactive modification by the ...


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