Plaintiff seeks an absolute divorce on the ground of extreme cruelty. A default having been entered against defendant, the matter proceeded uncontested.
On April 30, 1965, in a prior action there was a judgment for divorce from bed and board entered on behalf of plaintiff and against defendant, which provided that defendant was to pay plaintiff the sum of $25 per week for her support and
maintenance. The facts supporting that judgment are the same facts upon which plaintiff is relying for absolute divorce.
Since the date of the prior judgment there has been no reconciliation, no sexual relations between the parties and no payment made by defendant under the judgment. Plaintiff testified that in the earlier action she sought a judgment from bed and board because of religious scruples and also because she felt that such a divorce would cause defendant to mend his ways. The effect of the judgment of divorce from bed and board not being what she had hoped for, she now seeks an absolute divorce. In addition, she wishes to remarry.
The question is whether plaintiff is barred by the doctrine of election of remedies or entitled to an absolute divorce without having to adduce testimony concerning the acts of extreme cruelty by reason of the principles of res judicata.
A substantial segment of the bar is under the impression that plaintiff is barred under dictum in Hofman v. Hofman, 108 N.J. Eq. 161 (Ch. 1931). Advisory Master Child, in holding that under the facts of that case plaintiff was not barred by the doctrine of election of remedies, stated at the conclusion of his opinion:
"Where a divorce from bed and board has been decreed for either adultery or desertion, under the provisions of the Divorce act (P.L. 1907 p. 374 § 3), the party holding such decree would not have the right to a decree for absolute divorce based upon the same ground as that upon which the decree for divorce from bed and board has been entered. In such a case the doctrine of election of remedies would apply." (at p. 166)
Chancellor Walker adopted the conclusions of the Advisory Master as the opinion of the court.
That opinion was not referred to in Tremarco v. Tremarco, 117 N.J. Eq. 50 (E. & A. 1934). In that case the advisory master had recommended dismissal of a petition for divorce on the ground of desertion because there had been a decree of separation from bed and board granted to petitioner in the State of New York. In reversing, the court pointed out that at the time the petition was filed in New
York, although a full two years of desertion had accrued, under the laws of New York, the most that the injured party could obtain was a divorce from bed and board. It was held that the doctrine of ...