Susser, J.c.c., Temporarily Assigned.
This case raises the novel question of whether, in an action for divorce based on N.J.S.A. 2A:34-2(d) (18 months separation), a motion to enter final judgment by default pursuant to R. 4:43-2 is properly brought where the same is supported solely by affidavits.
The parties separated on September 1, 1974 and the complaint for divorce on the grounds above stated was filed on March 3, 1976. The husband, defendant herein, was personally served with the summons and complaint in Herkimer County, State of New York, by that county's sheriff's office on March 11, 1976. Default was entered by the Clerk of the Superior Court on May 5, 1976. Trial fees were paid and the case was approved for trial pursuant to R. 4:79-2.
On June 25, 1976 the wife, plaintiff herein, filed a motion pursuant to R. 4:46 seeking summary judgment for the following: (a) dissolving the marriage; (b) incorporating a property settlement and support agreement entered into by the parties on April 12, 1976, and (c) permitting the plaintiff to resume her maiden name.
The motion was set down for argument as to the propriety of such novel procedure in the Matrimonial Division, and oral argument was heard on July 9, 1976. During oral argument
counsel conceded for purposes of his argument that a motion for summary judgment envisions an adversary proceeding wherein a complaint and answer or appearance has been filed and a position taken that there exists no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law (R. 4:46-2). In the present case there has been a default and no answer or appearance filed by an adversary. Therefore, the court agreed to consider plaintiff's motion as one for the entry of final judgment by default based on affidavits alone, pursuant to R. 4:43-2. The court did not require the filing of a formal amended motion (R. 1:6-2 and R. 1:1-2).
It is clear that plaintiff is endeavoring to enter default judgment by means of filed proofs, thus obviating the need to take oral testimony. This procedure is routinely followed if a litigant's claim is for a sum certain or some easily liquidatable claim (R. 4:43-2(a)). R. 4:43-2(b) requires that in all other cases than those covered by R. 4:43-2(a)
A judgment for divorce does not clearly fall under subsection (a) or (b) of R. 4:43-2, but appears to be a hybrid falling in some gray zone in between.
The newly adopted Divorce Act of 1971 was not an abdication of the State's interest in the bonds of matrimony and of the role the family structure plays in our modern society. There is no indication in either the legislative history or in the post reform decisional law that the state is now any less concerned with the institution of marriage and the family structure. Our Supreme Court has said:
The law regards divorce actions as imposing special responsibilities upon the court and attorney as officers of the court. This is because in every suit for divorce the State is in fact if not in name
a third party having a substantial interest. The public is represented by the conscience of the court [citations omitted] and "The law regards these actions which tend to disrupt the marriage status with regret -- certainly it does not encourage them." ...