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Busch v. Busch

Decided: May 6, 1966.

GEORGE J. BUSCH, JR., PLAINTIFF,
v.
HELEN BUSCH, DEFENDANT



Consodine, J.c.c. (temporarily assigned).

Consodine

This court entered a judgment nisi in favor of defendant-counterclaimant for divorce upon the ground of extreme cruelty and ordered that plaintiff pay to her the sum of $150 per week as alimony as well as certain payments for hospital, medical and surgical bills, prior maintenance and counsel fees and costs.

The Plaintiff appealed. He filed his notice of appeal within the time provided by the rules and posted security for the preparation of the transcript. The transcript of the trial proceedings was lodged with the Clerk of the Superior Court, Appellate Division, thereby requiring plaintiff to file his brief in accordance with the rules within 30 days. That period of time has passed. No brief has been filed in the Appellate Division. Plaintiff has not made application to this court or the Appellate Division for a stay of the mandate and terms and provisions of the judgment nisi. The terms and provisions of that judgment are still operative.

This conclusion is supported by the rules of the court. Plaintiff argues that the notice of appeal per se stays not only

the judgment nisi as to the divorce, but also all its other terms and provisions.

The issues here are:

1. Whether the terms and provisions of the judgment nisi are automatically stayed by the filing of the notice of appeal.

2. Whether the conduct on the part of plaintiff in disobeying and disregarding the terms and provisions of the judgment nisi constitute contumacious conduct so that he should be cited in contempt.

3. Whether a writ of execution should issue against plaintiff's property.

4. Whether the court should issue a writ of sequestration to attach plaintiff's property and appoint a receiver to administer said property and sell the same in order to satisfy the terms of the said judgment.

5. Whether an injunction should issue restraining plaintiff from transferring his property.

The rules of court are unequivocal in declaring that the filing of a notice of appeal and the transcript of the proceedings does not automatically stay the mandate or terms and provisions of the judgment appealed. R.R. 1:4-6(b) provides that performance of a judgment and the proceedings to enforce it shall be stayed provided that a supersedeas bond is given or a cash deposit made and the notice of appeal has been filed. R.R. 1:4-7 provides that prior to the time that the brief on appeal has been filed, an application for an order requesting a stay shall be made to the trial court ...


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