Opinion
No. 50/720.
12-10-1923
SWEENEY v. SWEENEY.
Albert S. Woodruff, of Camden, for petitioner. James Mercer Davis, of Camden, for defendant.
Action for divorce by Mary I. Sweeney against Daniel A. Sweeney. On petition of defendant for a modification of the decree relative to alimony. Jurisdiction retained, and further hearing directed.
Albert S. Woodruff, of Camden, for petitioner.
James Mercer Davis, of Camden, for defendant.
INGERSOLL, V. C. The facts of this case are that the petitioner filed her petition for divorce on November 21, 1921, alleging adultery. The matter proceeded on petition, answer, and oral proof taken in open court, with the result that a decree nisi was advised on the 31st day of May, 1922, by Advisory Master Grey. In the decree nisi it was ordered and adjudged:
"That the said defendant pay to the petitioner for the maintenance of herself and the two children of the marriage aforesaid the sum of $15 each and every week until the further order of this court, and that the defendant pay to the solicitors of the petitioner the sum of $50 as counsel fee, and that he do further pay the costs of this suit incurred, and to be incurred, to be taxed, and that the petitioner do have execution therefor, according to the practice of this court."
On the 1st day of December, 1922, the final decree was entered, wherein it was ordered, that the said decree nisi be made and become absolute, and
"that the said petitioner and said defendant are divorced from the bonds of matrimony for the cause aforesaid, and the marriage between thesaid petitioner and the said defendant is hereby dissolved accordingly, and the said parties and each of them are and is hereby freed and discharged from the obligation thereof."
A petition was filed by the defendant praying that the decree nisi and the final decree entered thereon be modified, alleging the inability of the defendant, by reason of his physical condition, to pay the alimony ordered.
The first question to determine: Does that portion of the decree nisi "ordering" the defendant to "pay to the petitioner for the maintenance of herself and the two children of the marriage aforesaid, the sum of $15 each and every week until the further order of this court," remain in effect after the final decree is entered; the final decree not including, in terms, the order for alimony.
Mr. Biddle, In his Divorce Practice (2d Ed.) p. 138, says:
"It will be observed that nothing is nisi, except the determination of the status. Whatever else is written on the same sheet of paper may for convenience be called a part of the decree nisi, but it properly decerns, and is interlocutory or final, according to the nature of the subject dealt with, and the terms of the order disposing of it. Thus, the decree for costs is final; that for the custody of children is usually so, subject, of course, to the ever-continuing statutory power to modify or repeal."
And concerning alimony, on page 151:
"Under the former phrasing of this section it was considered doubtful whether, if the final decree was silent as to the matter, alimony could afterwards be awarded. But the present act is considered to leave every case open for future application, without any express reservation in the decree. The decree nisi is considered a sufficient adjudication to permit of the allowance of permanent alimony to a wife in whose favor the decree is made."
Since the present divorce act was enacted, it has been the accepted practice to consider the order (concerning alimony) in the decree nisi as being in force and effect until otherwise ordered. Even if the final decree is silent on the subject application may be made concerning alimony at any time after final decree and after enrollment of the decree. Section 25 of Divorce Act (2 Comp. Stat. 2021, p. 2035 [Rev. 1907]); McKensey v. McKensey, 65 N. J. Eq. 633, 55 Atl. 1073. This view does not conflict with MeGrail v. McGrail, 51 N. J. Eq. 537, 26 Atl. 705, and Swallow v. Swallow, 84 N. J. Eq. 109, 92 Atl. 872. In each of these cases the order was by its terms limited in time to the pendency of the suit.
The decree nisi, containing the order now under consideration, was by the decree final made absolute. By the statute above referred to it is now "lawful for the court to make such order touching the alimony of the wife * * * as [by] the circumstances * * * shall be rendered fit." It follows, therefore, that the petition is timely, and the court has jurisdiction.
The defendant was on the stand, and his manner and appearance were convincing that he was at that time unable to work, and I am satisfied that he was unable either to support himself or his family. Before making an order, however, I desire to have the defendant called as a witness. This may be done on the 20th day of December, 1923, at the chancery chambers, at Camden.