Goldmann, Freund and Haneman.
Following our decision in Flicker v. Chenitz , 55 N.J. Super. 273 (App. Div. 1959), and the abandonment of an appeal to the Supreme Court by the defendants after certification had been granted, 30 N.J. 152, 566 (1959), both the plaintiff-wife and the defendants-executors submitted proposed forms of judgment to the Chancery Division, to which our mandate had remitted the record and proceedings "to be there proceeded with" consistently with our opinion.
The proposed order for judgment submitted by the plaintiff contained, inter alia , a recital that the defendants could, upon notice to the plaintiff, move for a modification of the support provision, as we indicated they could in our opinion, 55 N.J. Super. , at pages 281 and 292-293, recently quoted with approval in Schlemm v. Schlemm , 31 N.J. 557, 580 (1960). But the plaintiff's proposed order also contained the following provision:
"It is further adjudged that defendants pay to plaintiff the sum of $11,060.00, being the amount in arrears under said agreement to
and including October 10, 1959, together with a sum equivalent to interest on the installments comprising a part thereof from the time the same became respectively due."
The defendants' proposed order for judgment made no mention of arrearages but included a provision setting the cause down for a hearing wherein all circumstances warranting modification would be considered. Defendants also made a motion for such a hearing, supported by an affidavit of one of the executors deposing that Dr. Flicker's sons are now 21 and 18 years of age and that the gross assets of the estate on March 29, 1958 totaled $135,648.03.
The trial judge signed the following order:
"Application being made for the entry of an order consistent with the mandate of the Appellate Division of the Superior Court, dated April 21, 1959, reversing the judgment of this court entered September 5, 1958:
It is on this 2nd day of December, 1959, ORDERED:
1. The mandate of the Appellate Division directing that summary judgment be entered in favor of the plaintiff and against the defendants, to wit: That the agreement approved by the court as contained in the decree entered herein for support 'during the lifetime of the wife' be specifically performed, is hereby made the judgment of this court.
2. The plaintiff wife, or the estate of the defendant husband, deceased, may apply to this court for a modification of the said decree if there is a material change of circumstances."
In a letter memorandum of the same date he explained to respective counsel the reason for the inclusion of ...