The within case involves a complaint filed by a plaintiff wife for arrearages of support for herself and child. The complaint sets forth her claim for arrearages on two bases: (a) arrearages accruing as a result of a divorce judgment entered in Alabama in 1958, and (b) the same amount of arrearages resulting under a separation agreement signed by the parties in 1958 and shortly thereafter incorporated in the said Alabama divorce.
Defendant husband in his answer and in the pretrial order entered, claimed inter alia that the Alabama divorce decree was not entitled to full faith and credit in New Jersey because it was of the "one-day type" and because the Supreme Court of Alabama has recently set aside a divorce in that jurisdiction based upon similar facts and held a portion of the Alabama divorce statute unconstitutional. The husband further maintains that the separation agreement is void as being against public policy because it contains therein one provision which may be against the public policy in this State. The particular sentence in this somewhat lengthy separation and support agreement reads "Each party agrees to submit to the in personam jurisdiction of any court in which the other party commences an action for divorce and to appear personally in any such action." There are other subsidiary issues raised between the parties, but for purposes of this decision they are not deemed to be of significance.
The facts are as follows: The parties, residents of the State of New Jersey, were married in the State of New
Jersey in the year 1950. One child was born to the marriage in the year 1954, which child remains with the mother, plaintiff herein. In September 1958, the parties entered into a five page separation agreement which indicated that they had made division of their property. In addition, said agreement provided for custody of the child by the wife, visitation by the husband, and made certain other provisions as to insurance which the husband was obliged to keep in effect. The agreement further required the husband to pay $50 per week to the wife for support for her lifetime or until she remarried, and $20 per week for the support of the child until she reached eighteen years of age.
The following two paragraphs were also included within the terms of this agreement:
"8. In case the parties are hereafter divorced by decree of any court, the terms and provisions of this Agreement shall be incorporated in such decree and become a part of said decree, and this Agreement shall survive such decree. Notwithstanding such incorporation this Agreement shall not be merged in such decree, but shall survive the same and shall be binding and conclusive on the parties for all time. * * *
9. Each party will, at any time and from time to time, execute and deliver any or all other instruments or papers that the other party may reasonably require to give effect to the provisions of this Agreement."
Finally, apparently both parties were represented by counsel, and the agreement specifically contained a provision that:
"11. The Wife acknowledges that she has had the advice of counsel of her own, and that she is entering into this Agreement voluntarily and with full knowledge of the Husband's income and property."
Within 10 days after, to wit, on October 9, 1958, a divorce was entered in the Circuit Court in Equity in the State of Alabama, the same having been obtained by the plaintiff wife. It ...