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Higginbotham v. Higginbotham

Decided: June 11, 1964.


Pashman, J.s.c.


This is a motion by plaintiff for summary judgment to enforce a lump sum alimony decree awarded by a Florida court. Plaintiff and defendant were husband and wife and owned two attached houses on East 7th Street in Clifton, each containing apartments. The parties moved to Florida, and plaintiff wife there secured a divorce on November 26, 1963. Defendant appeared in the action, but he says that he did not actively litigate same. The Florida court ordered a lump sum alimony payment by defendant and the conveyance by him to plaintiff of the real property in Clifton. As part of the lump sum alimony award, the court ordered the following personal property to be conveyed to plaintiff: the furniture in the Clifton property, a trailer, and one-half of the monthly income from July through November 1963 received by defendant from an insurance agency which was jointly operated by the parties. The court ordered the latter payments because defendant owed arrearages for temporary alimony payments. Defendant has complied with the order only to the extent that he has conveyed the trailer.

The Florida decree originally provided that a writ of ne exeat be entered against defendant and that he post a $2,500 bond. However, defendant was released in the custody of his Florida attorney. He then fled the State of Florida, in violation of the writ of ne exeat , and established himself in a basement apartment in the Clifton property. After defendant fled the jurisdiction, the Florida court appointed a special master in Chancery to convey the real and personal property in Clifton to plaintiff. The master executed a deed to plaintiff. By affidavit, plaintiff's Florida attorney says no appeal has been taken from the decree within 60 days as required by Fla. Stat. Ann. § 59.08. Fla. Stat. Ann. § 65.08 authorizes lump

sum alimony payments. None of these facts is disputed by defendant.

The action is being heard in this court rather than in the Matrimonial Division because it was commenced by complaint and order to show cause to restrain defendant from interfering with the real property or disposing of the furniture. Defendant counterclaimed for partition of the real property and consented to the temporary restraints.

The only material factual dispute concerns the amount due to plaintiff as her share of the profits from the insurance agency for the months of July through November 1963. Plaintiff argues that she is entitled to one-half of all the renewal premiums from the insurance agency. She also alleges by way of affidavit that the business was sold by defendant for $50,000 and that she is entitled to one-half of the proceeds. Defendant denies that the business was sold and states that his current annual income is only $2,000 from renewal premiums and that he cannot work due to a heart condition. This court has a copy of the Florida decree which only requires defendant to pay plaintiff one-half of the renewal premiums for the previously specified months. Plaintiff's claim for any greater sum is groundless.

The starting point on any motion for summary judgment is the express language of R.R. 4:58-3 which states that:

"The judgment or order shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment or order as a matter of law."

The movant has the burden of excluding any reasonable doubts, and all inferences which emanate from such doubts are to be resolved in favor of the opponent of the motion. United Advertising Corp. v. Borough of Metuchen , 35 N.J. 193 (1961); Frank Rizzo, Inc. v. Alatsas , 27 N.J. 400 (1958). The only factual issue in the case sub judice relates

to the question of the amount due to plaintiff from the insurance business. Summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. R.R. 4:58-3.

The general rule is that a sister state can enforce an alimony decree rendered in another state where past-due installments are due and not subject to modification by further court order. This is so even where future payments are subject to modification by court order. But an alimony decree is not final, and therefore not entitled to full faith and credit, if the past-due installments are retroactively subject to modification or recall by the court after their accrual. See Sistare v. Sistare , 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905 (1910); Barber v. Barber , 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82 (1944); Hudson v. Hudson , 36 N.J. 549 (1962); Whitehead v. Villapiano , 16 N.J. Super. 415 (App. Div. 1951); Paramore v. Paramore , 32 N.J. Super. 491, 494 (App. Div. 1954). See also Woodhouse v. Woodhouse , 17 N.J. 409, at pages ...

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