Plaintiff Walter Louis Fulton filed a complaint for divorce pursuant to N.J.S.A. 2A:34-2(d) (18-month separation). The sole form of relief sought was dissolution of the marriage. Defendant Patricia Ann Fulton was personally served with the summons and complaint. Default was entered in accordance with R. 4:43-1 and the case proceeded pursuant to R. 4:43-2(b).
The case was presented to this court on January 28, 1985. Plaintiff testified that the parties had separated on or about June 1972, had remained separated until the present time and that there was no reasonable prospect of reconciliation, all of which was accepted as true. There was further testimony by plaintiff that there were four children born of the marriage and that some of the children may have been in foster care. The
court inquired as to the contribution of plaintiff toward support and if plaintiff was discharging any obligation of reimbursement for the foster care of the children. Plaintiff stated he was not contributing nor did he specifically know the status of the placement.
At the conclusion of testimony the court refused to grant judgment dissolving the marriage, not for lack of proof as to the cause of action but because the court was not satisfied that Mr. Fulton was discharging his obligation to contribute to the support of his children. Accordingly, plaintiff's counsel was directed to inquire of the Division of Youth and Family Services (DYFS) as to the status of the children. The court reserved decision pending receipt of this information.
The court, by letter dated February 28, 1985, was advised by DYFS that the eldest two children had reached the age of majority, the third was in foster care and the youngest child had been adopted in 1979.
Before this matter could be rescheduled for hearing, the court was advised by plaintiff's counsel that plaintiff died intestate on April 1, 1985. The court was then advised that the attorney wished to proceed and have a judgment of divorce adjudicated. Notice was then directed to the surrogate and to DYFS as to the status of the litigation to protect the interest of the children. A letter was then received from an attorney on behalf of the children urging that the divorce judgment be granted. No application for intervention, however, was filed.
The issue presented is whether a final judgment of divorce may be adjudicated after death of a litigant based upon testimony taken prior to the death.
The earliest matrimonial cases dealing with the intervening death of a party in divorce litigation held that the right to sue for divorce and the ancillary rights of alimony and counsel fees died with the party. Seibert v. Seibert, 86 A. 535 (E. & A.1912); Dunham v. Dunham, 82 N.J. Eq. 395 (Ch.Div.1913); Hoyt v. Hoyt, 98 N.J. Eq. 426 (Ch.Div.1917); Sutphen v. Sutphen, 103 N.J. Eq. 203
(Ch.Div.1928). As will be later noted in more detail, Sutphen and Seibert have been overruled insofar as they are inconsistent with Williams v. Williams, 59 N.J. 229 (1971).
The rationale for these decisions was stated in Dunham, "If, therefore, a marriage be already dissolved by the death of one of the parties there is left no marriage relation or status of marriage upon which a decree of divorce could operate, and a pending divorce suit abates without surviving interest or right of revivor in anyone." 82 N.J. Eq. at 399. To enter a final ...