Opinion
05-11-1905
BUTTLAR v. BUTTLAR.
Weller & Lichtenstein, for complainant. Vredenbergh, Wall & Van Winkle, for defendant.
Bill by Mina Buttlar against Christian Buttlar. Heard on petition for a supplemental decree and answer. Petition dismissed.
See 56 Atl. 722.
Weller & Lichtenstein, for complainant. Vredenbergh, Wall & Van Winkle, for defendant.
GARRISON, V. C. This is a petition by the complainant in this cause, praying that a supplemental decree may be made requiring the defendant to pay to the petitioner all arrears due under a certain agreement entered into between the petitioner and the defendant on the 31st day of January, 1894. The petitioner and the defendant were husband and wife, and they entered into a written agreement which is printed in full in the report of the case of Buttlar v. Buttlar, 57 N. J. Eq., at page 650, 42 Atl. 755, 73 Am. St. Rep. 648. In April of 1896 the complainant filed a bill against the defendant, based upon the said agreement; the defendant answered, and the cause was tried before Vice Chancellor Pitney, whose opinion appears in 57 N. J. Eq., at page 645, 42 Atl. 755, 73 Am. St. Rep. 648. At page 648 of 57 N. J. Eq., page 756 of 42 Atl. (73 Am. St. Rep. 648), he says: "It [referring to the nature of the suit] was called, but I think not properly, a suit for specific performance. I think it must be considered as a simple action for money due by contract." The Court of Errors, upon this same matter, said (page 652 of 57 N. J. Eq., page 756 of 42 Atl. ): "We agree with the learned vice chancellor, who beard the cause in the Court of Chancery, to the extent that this suit may be regarded, and, to use his expression, 'must be considered, as a simple action for money due by contract.'" The result of the appeal to the Court of Errors was a direction that the decree appealed from be reversed, and a decree rendered in favor of the complainant for the amount due according to the terms of the contract. Such a decree was entered, which, however, recited that the contract should be specifically performed, and then provided, in terms, "that the defendant should, within 20 days after service upon him or his solicitors of a copy of the decree and the taxed bill of costs, pay to the said complainant the sum of $1,669.75, together with interest and the taxed bill of costs." This money was paid. The defendant paid all other sums due under the contract up to the 24th day of March, 1902. On that day a decree of absolute divorce was granted to the wife. Since that date Christian Buttlar has refused to pay any money to Mina Buttlar under the terms of the contract, claiming that by reason of the divorce he is no longer under any obligation. He has made some payments, but they were not made by him under the contract, but were part of the rents received from the real estate. Such payments were received by the solicitors for Mina Buttlar without prejudice to her claim that Christian Buttlar was still liable under the contract. Without regarding these small sums thus paid, the object of this petition may be briefly stated to be to secure what is termed a "supplemental decree" requiring the defendant to pay to the complainant the aggregate of $75 per month for each month from March, 1902, to date. The property which was mentioned in the contract of January 31, 1894, has been sold under proceedings in partition, and Christian Buttlar claims that for this reason he is no longer under any obligation to Mina Buttlar.
I have not been able to find in any of the text-books or reported cases any precedent for such an order or decree as the complainant asks for in her petition. I think it clear, from what was said in the Court of Chancery and in the Court of Errors concerning the suit brought by her upon this agreement, that it was not considered as a suit for specific performance, and that it was considered as a suit in equity for the payment of an ascertained sum of money which was then due. It was only brought in equity because the marital relations between the parties prevented the wife from bringing such a suit at law. Under these circumstances, I do not think that there can be any supplemental order or decree in this suit to compel the defendant to do anything more than he was ordered to do by the original decree, and which he has done. Whatever rights the complainant has with respect to unpaid sums of money accruing since the original decree must be asserted in a new procedure.
I will therefore advise that the petition in this case be dismissed, with costs.