Markowitz v. Markowitz

118 A. 632, 94 N.J. Eq. 23, 9 Stock. 23, 1922 N.J. Ch. LEXIS 12

• Court: New Jersey Court of Chancery
• Decided: October 31, 1922
• Status: Published

Opinion

Walker, Chan cellor.

This is a litigated divorce case heard before one of the vice-chancellors. The cause was tried in November, 1921, and at the conclusion of the hearing the vice-chancellor announced that he would advise a decree of divorce for the petitioner. The Divorce act (P. L. 1907 p. 474 § 20) provides that if after hearing the court shall be of opinion that the petitioner is entitled to a decree of divorce or nullity of marriage, a decree nisi shall be entered. Shortly after the hearing counsel for petitioner sent the vice-chancellor a draft of a decree nisi. 'This the vice-chancellor declined to sign because it contained matter not within his decision, and so wrote the solicitor, who, believing that the vice-chancellor had signed the decree, eliminating the matter objectionable to him, and that it had been entered—that is, filed and docketed, discovered after the lapse of more than six months from the time he had forwarded the decree to the vice-chancellor, that it had not been filed.

Counsel for petitioner moves that a decree nisi may now be filed nunc pro iunc as of a date more than six months ago (time of hearing), and that immediately thereupon a final decree may be entered. This cannot be done.

Section 21 of the Divorce act, supra, provides that a decree nisi shall become absolute after the expiration of six months from the entry thereof, unless appealed from, or proceedings for review are pending, or the court for sufficient cause, upon its own^motion, or upon the application of any party, whether interested or not, otherwise orders; and at the expiration of six months such final or absolute decree shall then be entered upon application to the court by the petitioner, unless prior to that time cause be shown to the contrary. Ho decree nisi has been entered in this cause.

The present Divorce act went into effect during the incumbency of Chancellor Pitney, and he promulgated a rule of practice (unwritten) that a decree nisi of divorce or nullity should be dated in the body thereof on the same date and at the same time when thé decree was actually filed and docketed by the clerk, so that no part of the six months allowed by statute for appeal or objection should be curtailed. And this is obviously correct practice. It is unfortunate for the petitioner in this case that by inadvertence and mistake a decree nisi was not made, filed and docketed at or about the time the vice-chancellor’s decision was rendered, which was nearly a year ago; but this hardship cannot be relieved against in the situation in which the legislature has placed this proceeding. It is because the entry of a decree nisi nunc pro tunc would abridge or abolish the time wherein an appeal could be taken, or objection urged, to the making absolute of such decree, accordingly as it might be dated back less -or more than six months before its entry, and thereby nullify pro tanto or in toto the provision for time in the statute just adverted to, that a decree nisi cannot be made and entered nunc pro tunc.

Let a decree nisi be entered as of present time.