On appeal from Superior Court of New Jersey, Chancery Division, Bergen County.
Lora, Seidman and Milmed.
Plaintiff Bernadine Sabini and defendant James Sabini were married on October 5, 1969. On July 5, 1970 the parties had the only child born of the marriage.
Plaintiff, a resident of Paterson in Passaic County, filed a complaint for divorce in Passaic County on the ground of extreme cruelty, and a supplemental complaint charging defendant, a resident of Paramus in Bergen County, with desertion. A judgment of divorce was entered in the Chancery Division, Passaic County, on August 19, 1974, which incorporated an oral agreement by the parties providing that defendant pay plaintiff $25 a week for her support, $50 a week for the support of their son, $25 a month for eight months to reimburse plaintiff $200 for a certain indebtedness, and for all extraordinary medical and dental expenses of the child. Payments were to be made through the Passaic County Probation Department.
Defendant, who earns his living as a musician and who has a somewhat erratic work schedule in that some weeks he works only a few days but in others he might work every day, fell behind in his payments to plaintiff, and on May 29, 1975, plaintiff moved to compel payment of the support and arrearages. At that time defendant was earning approximately $165-$168. Following argument on the motion, the trial judge issued an order dated June 18, 1975 requiring defendant, among other things, to continue paying the $75 a week alimony and support plus $10 a week toward the arrearages of $1,125.
Defendant again fell into arrears and plaintiff filed a motion to enforce litigant's rights in Bergen County where defendant resided on November 10, 1975. On December 12, 1975 a trial judge sitting on matrimonial matters in Bergen County signed an order compelling defendant to pay the $75 a week for alimony and support, as provided in the divorce judgment, and $10 a week towards arrearages whenever
his income exceeded $160 a week. The order also provided that if defendant should fail to pay such support prior to January 9, 1976, then upon such letter advice to the court, a warrant for defendant's incarceration would issue without any further formal notice. On January 21, 1976 a consent order was entered by the trial judge in Bergen County extending the provision for incarceration to March 12, 1976.
On January 25, 1977 plaintiff again filed a motion for enforcement of litigant's rights in Bergen County to compel defendant to pay arrearages, which, according to the report of the Probation Office, were $3,624.50 as of January 11, 1977. In response defendant filed a cross-motion on February 4, 1977 asking the court to reduce the amount of support payments and arrearages he was liable for, on the ground of changed circumstances. His supporting affidavit stated he had remarried in October 1975, had one child by his second marriage, and his wife was expecting a second child. He was working only three nights a week at that time due to the energy crisis and was being paid a per diem rate of $50, for a salary of $150 a week. Plaintiff, meanwhile, had been employed for the past three years as a receptionist and was earning approximately $135 a week. Additionally, she had the support payments of $75 a week when they were made.
Following oral argument on February 18, 1977 the trial judge entered an order on June 13, 1977 vacating the $25 a week alimony award but requiring defendant to continue to pay $50 a week child support. He also fixed arrearages as of February 18, 1977 at $3,849, as reflected by the report of the Bergen County Probation Office, and ordered defendant to pay $10 a week towards the existing arrearages.
Plaintiff first contends on appeal that only a judge assigned to hear matrimonial actions in Passaic County has jurisdiction to modify the divorce judgment issued by the Chancery Division in Passaic County. She interprets R. 4:75 as providing that the only court that can modify a divorce
judgment is the court that rendered the judgment, and R. 4:79-9(b) as applying only to contempt proceedings under R. 1:10-2 or relief to the litigant under ...