Ruggiero, J.c.c. (temporarily assigned).
[118 NJSuper Page 72] This matter is before me on motion by plaintiff husband, Stephen Horesta, against defendant wife, Abbey Horesta, for summary judgment on the following issues: (a) Conversion of a judgment of divorce from bed and board, granted the wife on July 24, 1959, into an absolute divorce, pursuant to N.J.S.A. 2A:34-3; (b) termination of weekly support and maintenance provided her under the judgment of divorce from bed and board granted her on July 24, 1959, and (c) restraint of her continued use of plaintiff's surname.
The material facts are not in dispute. Plaintiff and defendant were married on April 6, 1940. A judgment of divorce from bed and board on the ground of desertion was entered in favor of the wife in this court (Docket M-3593-57R) on July 24, 1959. The judgment provided that plaintiff pay her a fixed sum weekly for her support and maintenance, which he continues to pay. Both parties have continued their residences in the State of New Jersey; they have not reconciled and have continued to live separate and apart since the entry of the judgment of divorce from bed and board on July 24, 1959.
The new Divorce Act, L. 1971, cc. 212 and 217. N.J.S.A. 2A:34-3, provides that "the granting of a bed and board divorce shall in no way prejudice either party from thereafter applying to the court for a conversion of said divorce to a divorce from the bonds of matrimony, which application shall be granted as a matter of right." (Emphasis supplied)
1. Application for conversion of a divorce from bed and board to an absolute divorce under N.J.S.A. 2A:34-3 by way of motion for summary judgment is procedurally correct.
2. N.J.S.A. 2A:34-2 provides that "Divorce from the bond of matrimony may be adjudged for the following causes heretofore or hereafter arising. * * *" (Emphasis supplied)
N.J.S.A. 2A:34-3 is silent as to retroactivity and therefore does not, without interpretation of legislative intent, respond to whether a judgment of divorce from bed and board, entered prior to September 13, 1971, the effective date of the new Divorce Act, L. 1971, cc. 212 and 217, can be converted into a judgment of absolute divorce.
3. The provision for conversion of a divorce from bed and board pursuant to N.J.S.A. 2A:34-3 may be applied retrospectively to a judgment of divorce from bed and board granted prior to September 13, 1971, consistent with legislative intent. The legislature, by the September
13, 1971 amendment to the Divorce Act, provided the means to terminate all dead marriages and to that end did liberalize the existing grounds for divorce and added new grounds.
The existence of a judgment of divorce from bed and board is strong evidence that the marriage is dead, and any subsequent application for an absolute divorce removes any doubt of its reconcilability.
There is no legal impediment to the application of the conversion feature of N.J.S.A. 2A:34-3 retroactively to pre-September 13, ...