1. It is axiomatic that the Court of Chancery, having made the alimony order upon which appellant petitioner's action at law for alimony arrears is based, retains a continuing jurisdiction to modify and enforce that order.
2. Having secured her order for alimony in the Court of Chancery, appellant petitioner will not be permitted to prosecute her action at law touching the same subject-matter.
3. Appellant petitioner particularly should be enjoined from prosecuting her action at law for alimony arrears because, having accepted the benefit of Chancery's order for alimony under the statutory limitation that her right thereto should cease upon remarriage, she now seeks by her law action to rid herself of that limitation, which can be enforced only in Chancery, and to escape other equitable defenses beyond the jurisdiction of the Circuit Court to consider. It is clear that such equitable defenses do exist.
4. R.S. 2:50-38 requires Chancery, on proper application by the former husband whose wife has remarried, to modify any alimony order or decree "by vacating and annulling any and all provisions" for the payment of alimony. It makes no exception where the effect of such nullification is to obliterate unpaid arrearages of alimony, whether accrued before or after the former wife's remarriage.
5. Words used in a statute are to be given their ordinary meaning unless it clearly appears from other parts of the statute that some other meaning is intended.
6. R.S. 2:50-38 forbids Chancery to "make any order touching the alimony" of the wife after her remarriage. This includes orders for fixing the amount of the arrearages, orders in contempt, and all other orders intended to enforce collection — a prohibition inconsistent with the continued vitality of the original alimony order and clearly indicative of the legislative intent that the wife's remarriage puts an end to all of the husband's obligations.
7. Alimony is but the judicial admeasurement of the husband's obligation to maintain his former wife periodically out of his income.
8. In this state, arrearages of alimony do not become vested in the former wife, or take on the attributes of a judgment for the payment of a fixed sum until Chancery so orders. No such order was made in this case.
9. The statute ( R.S. 2:50-38) makes it mandatory on the Court of Chancery, as well as exclusively within the jurisdiction of that court, to grant defendant-respondent's application to annul the alimony order ab initio, so as to eliminate all arrearages accrued thereunder. Order enjoining petitioner-appellant from prosecuting her action at law, affirmed.
10. When it is apparent that a controversy, in addition to its legal aspect, involves some equitable estate, right or interest which is exclusively cognizable by a court of equity, so that a complete determination of the issues cannot be made by a court of law, it is well settled that equity not only may, but must, interfere at the suit of the party in whom the equitable estate or right is vested, and restrain the action at law, and decide the whole controversy. This is especially so when he is entitled to some affirmative equitable relief which will clothe him with a legal right or title, and thus defeat the legal action brought against him.
PER CURIAM.
The decree under review will be affirmed, for the reasons stated in the opinion of Advisory Master Herr.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, PERSKIE, PORTER, COLIE, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 13.
For reversal — None.