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Genola v. Scharer

Decided: May 31, 1963.

CLAIRE GENOLA, PLAINTIFF-RESPONDENT,
v.
HERBERT SCHARER, DEFENDANT-APPELLANT



Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Plaintiff Claire Genola, a former wife of defendant Herbert Scharer, instituted proceedings in the Superior Court, Chancery Division, (1) to compel payment of accumulated arrearages under a New Jersey separation agreement, and (2) to enforce its specific performance under an Alabama decree of divorce which incorporated the terms thereof without a merger.

The trial court rendered judgment, inter alia , in favor of plaintiff in the sum of $2,210, representing payments and

interest which accrued subsequent to her remarriage, and denied specific performance in futuro as to "the aforesaid separation agreement referring to the support and maintenance of the plaintiff." Defendant appeals from the final determination as to the aforesaid accrued payments, but does not seek a review of the remaining portion of the judgment which relates to the support and maintenance of the minor children of their marriage.

Defendant contends before this court, as he did at the trial level, that (1) N.J.S. 2A:34-25 precludes the entry of any judicial order in this State with respect to alimony or support accruing after the remarriage of his former wife, and (2) his divorced wife is not entitled to the claimed arrearages under the terms of the Alabama decree because they matured subsequent to her remarriage. Plaintiff counters, in substance, (1) the separation agreement related to support and a property settlement, the terms of which are not "alimony" in a statutory sense, and (2) the foreign judgment, including the unmerged inter partes agreement, should be accorded constitutional "full faith and credit."

The basic facts are not in dispute. The parties were married in New Jersey on May 7, 1939. Nearly 20 years thereafter (March 20, 1959), plaintiff, then Claire Scharer, commenced an action for divorce in the Superior Court, Chancery Division, State of New Jersey, pursuant to N.J.S. 2A:34-2(c). On April 2, 1959 the parties, as "husband and wife," entered into an agreement, reciting that "divers disputes and unhappy differences" had arisen between them, which agreement, among other things, provided for a division of property rights, the support of their three minor children ($40 a week for each child), the mother's custody of the children, and that defendant, "shall, for and towards the support and maintenance of Claire Scharer [plaintiff herein], contribute the sum of $30.00 per week."

After the New Jersey proceedings had been discontinued, plaintiff initiated action in the State of Alabama for the dissolution of the marriage and, on June 4, 1959, an absolute

decree of divorce was rendered in her favor by the Circuit Court, Marion County, in that state, which decree concluded with the provision that:

"The terms of the agreement between the parties dated April 2, 1959, are incorporated in this decree by reference, as though fully set forth herein, and the parties are ordered to abide by and carry out the terms of said agreement. The said agreement is not merged with this decree but shall survive the same."

On November 11, 1961 plaintiff became the wife of one Alfred Genola, of Deal, New Jersey. Thereafter defendant (a New Jersey resident), who had also remarried, arbitrarily reduced his weekly remittances, eliminating therefrom any payments toward the support and maintenance of his former wife. The litigation under review then ensued.

There is little doubt that Alabama was a forum state selected for a convenient and expeditious divorce. Defendant, however, voluntarily entered an appearance in the foreign proceedings, filed an answer and waiver, and thereby submitted to the necessary in personam jurisdiction. Accordingly, the judgment of the Alabama court under the facts before us is invulnerable to attack in New Jersey; the jurisdictional issue is res judicata. Sherrer v. Sherrer , 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429, 1 A.L.R. 2 d 1355 (1948); Coe v. Coe , 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, 1 A.L.R. 2 d 1376 (1948); Johnson v. Muelberger , 340 U.S. 581, 71 S. Ct. 474, 95 L. Ed. 552 (1951). Its decree in the entirety, not just the portion relating to the dissolution of the marriage, is unimpeachable. ...


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