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Woliner v. Woliner

Decided: February 10, 1975.


Michels, Morgan and Milmed.

Per Curiam

[132 NJSuper Page 218] Plaintiff wife instituted the present action pursuant to N.J.S.A. 2A:34-23, seeking support from defendant

who, at the time the suit was instituted was still her husband. The parties were first married in 1937 and divorced in 1950. They remarried in 1955 and again became divorced approximately a month after the present suit was instituted, by a decree of divorce entered in the State of California awarded the husband. The California judgment was based upon constructive service of process upon plaintiff, who at all times pertinent to this suit, was a resident of the State of New Jersey. Both parties lived in New Jersey during most of their marital life. Plaintiff wife never personally appeared in the California proceeding and the judgment of divorce expressly avoids any adjudication with respect to property rights. Nor does the decree purport to affect any right plaintiff may have to alimony or support from her former husband.

Ten days after filing the complaint plaintiff sought and obtained a writ of attachment on the ground that defendant was a resident of the State of Texas or the State of California, or was an absconding debtor. Thereafter, a levy was made by the Sheriff of Mercer County on all the right, title and interest of defendant to surplus cash (proceeds from a foreclosure proceeding) on deposit with the Clerk of the Superior Court.

Following entry of a consent order on October 18, 1972 vacating defendant's default and permitting him to file a responsive pleading, his answer and general appearance to the complaint were filed. Plaintiff's application for pendente lite support was denied, as was defendant's application for summary judgment, interposed on the theory that entry of the California divorce after the filing of plaintiff's complaint for maintenance deprived New Jersey of jurisdiction to award support to plaintiff.

On May 4, 1973 plaintiff moved for an order permitting her to amend her complaint to include a request for equitable distribution of the marital estate (pursuant to N.J.S.A. 2A:34-23) on the basis of the California judgment of divorce. This application was also denied on the ground that N.J.S.A.

2A:34-23 applied only to divorces obtained in New Jersey and that equitable distribution was not available to one who had been divorced by a foreign decree.

Accordingly, the only issue upon which testimony was received concerned the amount of support, if any, to which plaintiff was entitled. Judgment was entered in favor of plaintiff awarding her $350 a month as support, retroactive to the date the complaint was filed, July 10, 1972. The support for the period from July 10, 1972 to October 10, 1973 was payable from the sum of $5,250 held by the Clerk of the Superior Court, subject to the writ of attachment which was previously entered in the case. Counsel fees in the amount of $3,750 to plaintiff's counsel, together with costs and disbursements, were ordered to be paid by defendant. Defendant appeals, contending that the awards of support and counsel fees were manifestly excessive. Plaintiff cross-appeals, contending that the trial court erroneously denied her application to amend the complaint to assert a claim of equitable distribution.

For reasons which will become apparent later, we deal first with the issue raised by plaintiff's cross-appeal from the denial of her right to equitable distribution. The right to equitable distribution of property legally and beneficially acquired by the marital parties during the marriage is a creature of statute created by the 1971 amendment to N.J.S.A. 2A:34-23. The provision reads as follows:

In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.

Defendant points out that the initial portions of ยง 23 which provide for the payment of alimony or maintenance of the wife and children are expressly made applicable to matrimonial ...

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