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Linder v. Linder

Decided: February 6, 1974.

IRENE LINDER, PLAINTIFF-RESPONDENT,
v.
RALPH B. LINDER, DEFENDANT-APPELLANT



Handler, Meanor and Kole. The opinion of the court was delivered by Kole, J.s.c., Temporarily Assigned.

Kole

On January 7, 1964 plaintiff filed with the Monmouth County Juvenile and Domestic Relations Court a complaint seeking support for herself and two minor children, alleging that defendant, her lawful husband, had deserted and failed to support them.

On February 21, 1964, following a hearing, an order was entered requiring defendant to pay $36 a week for the support of his wife and two children. Defendant's application for temporary custody of the children was denied December 8, 1964. On March 19, 1965 an amended order was entered requiring defendant to pay an additional $5 a week until arrearages of $144 were paid in full. On September 30, 1966 defendant filed an application for rehearing and modification of the order of March 19, 1965. On January 17, 1967 a rehearing was held but a modification of the order was denied.

On March 15, 1968, after a hearing on motion of the County Probation Office to recover an arrearage of $587 on the March 19, 1965 order, an amended support order was entered requiring defendant to pay $36, plus an additional $5 a week, until the arrearage was satisfied.

On February 1, 1973 the Probation Office initiated a proceeding to enforce plaintiff's rights against defendant, alleging an arrearage of $8,708. At the subsequent hearing on March 23, 1973 an order was entered fixing $6,000 as accumulated arrearages and directing that defendant be arrested and jailed unless payment of the $6,000 be made by April 23, 1973.*fn1 The judgment was stayed pending appeal.

At that March 1973 hearing, for the first time defendant's counsel informed the court that in 1963 the parties had been

divorced by a Mexican decree. The court refused to admit evidence of that decree, holding that it would not upset the 1967 ruling finding defendant liable for plaintiff's support; that defendant should have appealed the support order, and that it had jurisdiction to hear and determine the matter in aid of litigant's rights. This appeal followed.

The parties were married in 1956 and have two children born prior to the marriage. In July 1963 defendant sued plaintiff for divorce in the City of Juarez, State of Chihuahua, Mexico. Defendant appeared personally in the Mexican proceeding. Plaintiff filed a power of attorney, executed in June 1963, in which plaintiff submitted to the jurisdiction of the Mexican court and acknowledged the incompatibility of temperaments constituting the grounds for the divorce. On July 16, 1963 a divorce decree was entered by the Mexican court and the custody of the two children was granted to plaintiff. A March 12, 1963 separation agreement was incorporated therein by reference.

The 1964 support order and the subsequent orders did not separately designate the amounts payable to plaintiff and those payable to the children. The appeal challenges the portion of the March 23, 1973 judgment establishing accumulated arrears representing support money for plaintiff alone. The sole ground of appeal is that the Juvenile and Domestic Relations Court lacked jurisdiction to award or enforce an order for the support of plaintiff in view of the 1963 divorce decree.

Plaintiff's 1964 complaint was brought pursuant to N.J.S.A. 2A:4-18(e), which reads as follows:

The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints:

e. Involving the domestic relation, where a husband or father deserts his wife or child even though they continue to live in the same household, in which case the court may order ...


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