Plaintiff and defendant had been husband and wife. They were divorced in the State of Nevada.
Plaintiff filed a complaint in three counts. The first count is to reduce support payments ordered payable to his wife and child by the Nevada court; the second count
is to formalize in this State the reduced amount of support, and the third count is to adjudicate visitation rights of the plaintiff.
The defendant charges unclean hands on the part of plaintiff, because he is in default of the payments ordered to be paid by the Nevada court; the plaintiff made partial payments and did not fully comply with the support order; and, further, that the defendant never agreed to a reduction in the amount of payments to be paid to her. As to visitation, defendant objects to Sunday visitation because it would interfere with the child's religious obligations, but consents to Saturday visitation, and particularly of the child in the summertime. The defendant counterclaims for the arrearages due her under the Nevada decree.
The plaintiff went to Nevada in 1958 and procured a divorce from the defendant. Two children were born of their marriage: one who is now emancipated, and one presently nine years old in the custody of defendant. The Nevada decree ordered the payment of $400 a month for the support of the defendant and the minor child. The validity of the Nevada decree is not at issue. The plaintiff remarried the same month in which he obtained the divorce decree and could not be heard in an attack upon a decree which he secured. Woodhouse v. Woodhouse , 11 N.J. 225, 229 (1953).
Plaintiff's contention is that this court can only consider a modification of the alimony and support provision in futuro and that the defendant wife cannot be heard on her counterclaim for accrued arrearages of the Nevada decree. He argues that the Nevada decree is not final and not within the ambit of the full faith and credit clause of the Federal Constitution. The Nevada decree specifically provides that that court retain jurisdiction to make "further orders relative to the care, custody, support and maintenance of the minor child * * *."
Nevada Compiled Laws Supplement section 9474.01 (now Nevada Revised Statutes 125.170) in effect when plaintiff
obtained a decree in that state provides "In divorce actions, * * * installment judgments for alimony and support shall not be subject to modification as to accrued installments, but only as to installments not accrued at the time a motion for modification is filed." (Emphasis added)
In the case of Whitehead v. Villapiano , 16 N.J. Super. 415 (App. Div. 1951), it was held that the arrearages due under a Nevada decree were final provided no modification of the decree was made prior to the maturity of the installments. This, notwithstanding the absence of the above-cited statute of Nevada which was enacted after the entry of the decree in the Whitehead case.
The defendant in the case sub judice did accept payments in lesser amounts than that ordered by the decree. This court is satisfied that there was no agreement by her to have the payments reduced. This court holds that acceptance of a lesser amount does not amount to a modification, for a divorced wife with a child could very well accept a lesser sum as a matter of self-preservation. It should be observed that ...