For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
[36 NJ Page 551] Plaintiff Marion Hudson sought a judgment for arrearages of alimony due from her former husband, Dannie Hudson, under a divorce decree she obtained in the State of Alabama on October 9, 1958. In attempting to avoid payment, defendant contended that the divorce was
obtained by fraud, that the separation agreement between the parties fixing the alimony payments, which was incorporated in the decree, was void as against public policy, and that the award for periodic payments of alimony being modifiable by the courts of Alabama did not have such quality of finality as would permit a New Jersey court to allow recovery for the sum of the arrearages. The Chancery Division rejected these defenses and entered judgment for $750, representing the amount in default when the complaint herein was filed.
Subsequent to the divorce, Dannie Hudson married his present wife, Frances Costello Hudson, since which time they have lived together in Irvington, New Jersey. She intervened in this action seeking a declaration respecting the validity of her marriage. Upon determining in the main case that the Alabama decree was valid and entitled to full faith and credit, the trial court dismissed her complaint. Defendant sought a review in the Appellate Division, but we certified the matter before hearing there.
It was indicated at the oral argument that a further aspect of the litigation between plaintiff and defendant remains undecided. Defendant asserts he took the position below that even if the divorce decree was valid and the arrearages sufficiently final to warrant judgment, his circumstances as well as those of his former wife have so changed since the Alabama divorce that the Chancery Division, having jurisdiction of the parties, should reduce the weekly allowance of alimony. That such issue was presented is not at all clear from the record before us, although the pretrial order does say that the validity of the Alabama decree and of the claim for arrearages is to be determined first, and other questions reserved. In any event, in order not to interfere at this late date with the plan pursued by the parties with the consent of the trial court, upon resolution of the issues presented to us, we shall order a remand for completion of the undecided matter. It must be noted, however, that we do not approve of piecemeal adjudication
of controversies. Our rules (with a narrow exception, not applicable here; see R.R. 4:55-2) prohibit direct appeal unless final judgment has been entered disposing of all issues as to all parties. R.R. 1:2-1; 2:2-1. Consent of counsel cannot supply a basis for violation of the rule.
At the outset of our consideration of the appeal, it should be noted that at the oral argument defendant abandoned his attack on the portion of the decision below which adjudged the Alabama divorce decree valid and required full faith and credit to be given to it. Therefore, the issues submitted for our determination are (1) legality of the pre-divorce separation agreement, and (2) whether the alimony arrearages under the foreign decree have sufficient finality to form the basis for a judgment in New Jersey. Their solution requires a short factual statement.
Plaintiff and defendant were married on August 9, 1950. One child, a daughter, was born of the marriage. At the time of separation their marital home was in Staten Island, New York. On September 30, 1958, while living apart, they executed an agreement in New York State, under which the husband agreed to pay the wife $50 a week for her support and $20 additional for the child. Both parties were represented by counsel at the time and the wife acknowledged in the contract that she had received the independent advice of her own attorney. The agreement provided, among other things:
"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 such 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. 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.
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."
Thereafter, plaintiff went to Alabama and instituted suit for dissolution of the marriage. Defendant voluntarily entered an appearance in the action. The divorce was granted, the separation agreement was incorporated in the decree in accordance with the stipulation set forth above, and the parties were ordered to "abide by and carry out" its terms with respect to support. The ...