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Ogden v. Ogden

Decided: June 14, 1968.

JOAN M. OGDEN, COMPLAINANT,
v.
JOHN E. OGDEN, DEFENDANT



Kentz, J.J. & D.r.c.

Kentz

[101 NJSuper Page 510] The parties to this suit were divorced on November 21, 1967 by a judgment entered on the grounds of desertion in the Superior Court of New Jersey, Chancery Division, in favor of defendant and against complainant herein. Complainant in this proceeding now seeks to obtain the arrears accrued under an order for her support entered in the Juvenile and Domestic Relations Court of Somerset County, and transferred to this court prior to the entry of the aforesaid judgment of divorce. The pertinent facts follow.

On January 8, 1963 complainant filed a complaint for support in the Juvenile and Domestic Relations Court of Somerset County, in which county both parties then resided. A hearing was held on February 14, 1963. At the hearing defendant contended that he was not liable for the support of his wife since she was the wrongdoer. The court found otherwise and a support order was entered on February 15, 1963, whereby defendant was ordered to pay $50 per week -- $10 for complainant and $40 for the four children of the marriage who were then in complainant's custody.

On September 29, 1967 the Somerset County Juvenile and Domestic Relations Court ordered that the complaint and order of support be transferred to Union County with existing arrearages. Defendant made his last payment on the Somerset County order on September 30, 1966, at which time he took custody of the four children. On that date the arrears were $1,100. Complainant seeks this amount plus $10 per week, from September 30, 1966 until the entry of the judgment of divorce.

Defendant denies the existence of any arrears insofar as they relate to the payments allocated for the support of complainant, and contends that he is not liable therefore since the divorce was granted in his favor and the Superior Court failed to reserve in its judgment any arrears under the support order here in question. Furthermore, defendant argues that since his contention at the hearing in the Somerset County Juvenile and Domestic Relations Court that his wife was a wrongdoer and not entitled to support was confirmed by the entry of a judgment for divorce in his favor by the Superior Court, the judgment should be given retroactive effect and any arrears resulting from the order for her support should be cancelled. He cites as authority Lief v. Lief, 14 N.J. Misc. 27, 178 A. 762 (Ch. 1935), affirmed, 117 N.J. Eq. 483 (E. & A. 1935).

The sole issue here is the effect, if any, a judgment for divorce has on arrears accumulated under a prior order of support of the Juvenile and Domestic Relations Court where the

judgment is granted in favor of defendant in the support proceeding and fails to reserve arrears in favor of the unsuccessful party, and where defendant had urged nonliability for support of his wife at the hearing in the Juvenile and Domestic Relations Court because she was the wrongdoer and such wrongdoing was the basis for the divorce judgment. This presents a novel question in New Jersey.

Without needlessly going into excessive citation, some general principles may set the stage for my decision. Beyond question a husband is liable for the support of his wife during the marriage and for his children during their minority. Turi v. Turi, 34 N.J. Super. 313 (App. Div. 1955); Daly v. Daly, 21 N.J. 599, 609 (1956); Fischer v. Fischer, 24 N.J. Super 180 (App. Div. 1952) reversed on other grounds 13 N.J. 162 (1953). He would be liable for the expense of any necessaries provided to his family because of his failure to provide them without just reason. Levin v. Levin, 130 N.J. Eq. 459. (Ch. 1941). A man's duty of support towards his former wife terminates when a judgment of divorce is entered in his favor because of the fault of his former wife. Nappe v. Nappe, 20 N.J. 337 (1956). As stated before, while this issue has not arisen with respect to orders of the Juvenile and Domestic Relations Court, the decisions of our appellate courts as to the effect of a divorce judgment on prior orders for separate maintenance under N.J.S. 2 A:34-24 may shed some light on the issue here presented.

Schimek v. Schimek, 109 N.J. Eq. 395 (Ch. 1931), was an action brought to adjudge defendant in contempt for failure to pay arrearages arising out of a decree for separate maintenance. Defendant denied his liability on the basis of a 1928 decree of divorce which failed to provide for alimony. The court dismissed his defense because two years after the decree of divorce defendant had consented through counsel to the entry of an order for $20 per week, and again in 1930 defendant had been adjudged guilty of contempt and execution of the writ was withheld only on the condition of

his paying one-third of his weekly income. In denying defendant's contentions the court stated:

"In view of these two adjudications made long after the divorce decree, to one of which the defendant consented, he is barred now from claiming that he is no longer responsible under the maintenance decree. Complainant had a right to assume that he would make the payments as he agreed, and he cannot now raise ...


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