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Newgard v. Newgard

Decided: July 31, 1970.

ETHEL E. NEWGARD, PLAINTIFF,
v.
JOHN J. NEWGARD, DEFENDANT



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

Hartman

The issue of alimony here is a novel one.

Plaintiff is the former wife of defendant. She secured a divorce from him in 1955 in the State of Pennsylvania, the matrimonial domicile of the parties at that time. On February 4, 1969 plaintiff filed an action in the Chancery Division against defendant, inappropriately styled as a separate maintenance action, in which she sought support and maintenance

for herself and the two minor children of their marriage. Both parties were then residents of New Jersey.

As a result of this action the parties arrived at agreed provisions for the support of the children, including the payment of rent for plaintiff's apartment while the children or either of them lived with their mother. These provisions were set forth at length in a "consent order" -- it should have been a judgment -- entered on May 6, 1969. Paragraph 7 of the order recites: "Plaintiff disclaims any rights which she personally may have for alimony here."

Plaintiff now moves at the foot of the judgment for a modification to the end that the court award her alimony based on her asserted needs and changed circumstances.

It is well settled in Pennsylvania that a valid divorce decree terminates the duty of a husband to support his wife. Commonwealth v. Petrosky, 1951, 168 Pa. Super. 232, 77 A.2d 647; Commonwealth ex rel. McCormack v. McCormack, 1949, 164 Pa. Super. 553, 67 A.2d 603; Commonwealth ex rel. Parker v. Parker, 1915, 59 Pa. Super. 74. [Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa. Super. 403, 150 A.2d 370, p. 372 (Super. Ct. 1959)].

The Pennsylvania statutes on divorce are silent as to alimony (except in cases dealing with insane spouses, 23 P.S. , § 45); Pennsylvania decisional law has interpreted the statutory silence as denying alimony after divorce. Hence, it is clear that if the parties to this action had remained residents of Pennsylvania, plaintiff's motion for alimony would have been denied. Under the law of that state a husband's obligation to support his wife may be enforced only while they remain husband and wife. After divorce the husband's obligation to support her ceases; his duty to support his children is, of course, not affected by the event of a divorce.

The wife contends that New Jersey permits alimony to a divorced wife whether the divorce is obtained by her in this State "or elsewhere," citing as her authority N.J.S.A. 2A:34-23. In other words, despite Pennsylvania's prohibition of alimony following a divorce, the public policy of New Jersey, by reason of our statute, permits it. This contention

goes contra the duty imposed upon states by the Full Faith and Credit Clause of the Federal Constitution to respect the judgments and laws of our sister states. Art. IV § 1. This court is bound to give that respect and to grant no more or no less relief than would be afforded in the rendering state. Roskein v. Roskein , 25 N.J. Super. 415 (Ch. Div. 1953). What the Pennsylvania law does not permit, New Jersey will not grant.

In Lorusso, supra , the Pennsylvania wife had secured a support order against her husband. Thereafter he established his residence in Nevada and eventually obtained an ex parte divorce in that state. He followed this with a move in the Pennsylvania proceedings to vacate the previously entered support order. After a plenary hearing Pennsylvania found that he had in fact established a bona fide residence in Nevada, the Nevada decree was entitled to full faith and credit in Pennsylvania, and therefore he was entitled to be relieved of any further obligation to support his former wife from ...


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