Callen v. Gill, A--132

• Decision Date: 11 June 1951
• Docket Number: No. A--132,A--132
• Citation: 81 A.2d 495,7 N.J. 312
• Parties: CALLEN v. GILL.
• Court: New Jersey Supreme Court

Page 312

7 N.J. 312

81 A.2d 495

CALLEN v. GILL.

No. A--132.

Supreme Court of New Jersey.

Argued May 14, 1951.

Decided June 11, 1951.

William R. Blair, Jr., Red Bank, argued the cause for appellant. Robert H. Maida, Red Bank, on the brief. (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

Crawford Jamieson, Trenton, argued the cause for respondent. Harrison T. Barrow Trenton, on the brief. (Jamieson & Walsh, Trenton, attorneys).

The opinion of the court was delivered by

CASE, J.

Plaintiff, John Holmes Callen, and defendant, Lenore Merrill Callen Gill, formerly husband and wife, were divorced by the decree of a Nevada court on April 24, 1942. Both parties subsequently remarried. There were three children of the marriage between plaintiff and defendant, of whom one, Daniel Dixon Callen, is the subject of this contest for custody. The parties made an agreement on April 7, 1942, which provided that 'the care and custody of the aforementioned three children of the marriage shall be in the party of the first part (the husband) with right of visitation in the party of the second part'. The Nevada decree approved, confirmed and adopted the agreement of which that provision was a part, and the parties were decreed to abide thereby and to perform the obligations thereof. The decree, with the agreement which it incorporated, was observed by the parties until on or about January 27, 1950, when Daniel, then twelve years of age, went as was the practice to spend the weekend with his mother at Bay Head and from that time forward the boy did not return to the father's household except on a single occasion, June 19, 1950, in celebration of his brother's birthday.

Plaintiff filed this complaint charging his former wife with exercising undue pressure and restraint upon the lad and praying for an order directing the return of the child, and awarding his custody to the plaintiff, and for such other order or relief as the court might direct pertaining to the best interest and welfare of the said child. The matter came on for hearing. At the conclusion of the hearing the court determined that the truth of the allegations of the complaint had not been sustained and that the complaint should be dismissed. It is not clear just what allegations of the complaint failed in truthfulness. The status of the Nevada decree and of the agreement made in connection therewith and incorporated therein was not disputed, nor was it disputed that the custody of the children, including that of Daniel, had been in accordance therewith until the departure of Daniel from the plaintiff's household beginning January 27th, 1950. The appeal was to the Appellate Division of the Superior Court and was brought here on our own motion.

Appellant presents five points, of which the first is that it is error to permit an attorney of record to testify to the merits of a Chancery matter. The point arises out of the incident that Mr. Harrison T. Barrow, defendant's attorney of record, was permitted by the court to testify at the hearing on matters going to the merits of the case over objection of counsel for the plaintiff. The practice whereby an attorney for a party takes the witness stand and testifies in behalf of his client on the merits of the case was severely condemned by the former Court of Chancery. Garrett v. Garrett, 86 N.J.Eq. 293, 98 A. 848 (Ch.1916); Doremus v. Doremus, 88 N.J.Eq. 256, 102 A. 659 (Ch.1917); Gershonowitz v. Neider, 95 N.J.Eq. 580, 123 A. 530 (Ch.1924); In re Judges in Chancery, 101 N.J.Eq. 9, 137 A. 151 (Ch.1927); Caruso v. Caruso, 102 N.J.Eq. 393, 141 A. 16 (Ch.1928); Etz v. Weinmann, 106 N.J.Eq. 209, 150 A. 436 (Ch.1930); Seminara v. Grisman, It was recognized, however, that It was recognized, however, thawt there are instances where counsel cannot avoid testifying on behalf of his client, as where facts are so peculiarly within his knowledge that his evidence becomes a matter of necessity in order that justice may be done.

The Canons of Professional Ethics, adopted by the American Bar Association and made by our Rule 1:7--6 to apply to the conduct of members of the bar of this state, provides in Section 19 as follows: 'When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court in behalf of his client.'

Taken in the abstract, the practice is under emphatic condemnation. Yet, notwithstanding the severity with which the Chancery decisions denounced the practice, and the suggestion in them that the testimony of a lawyer so offending would be rejected we find no instance where such testimony was actually rejected. In White v. State Board of Tax Appeals, 123 N.J.L. 350, 8 A.2d 819, 821, (Sup.Ct.1939), the attorney for a taxpayer was excluded by the State Board of Tax Appeals as a witness. The opinion by Mr. Justice Parker on review by Certiorari had this to say: 'The conduct of Mr. Craven in offering himself as a witness is criticised by the respondents, and not unreasonably. In 70 C.J. 175, it is said: 'Except with respect to confidential communications, an attorney may testify as to matters affecting his client. As respects an attorney connected with the case on trial, the practice of counsel testifying is of doubtful propriety and he should ordinarily withdraw before becoming a witness, and if counsel testifies, generally it is unbecoming for him to examine witnesses or address the jury, although there is no impropriety in his testifying to mere formal matters, and there are exceptional cases in which it may be proper and necessary for counsel to testify to matters affecting the merits of the case. * * *' As we have already intimated, this testimony that was excluded was not such as required an expert witness, and apart from the statute, any one with personal knowledge of the facts could have testified to them. In the Court of Chancery testimony by an attorney or solicitor has been condemned a number of times. (Citing Chancery cases.) But whatever may be the ethical propriety or otherwise on this point, it cannot well be said that the testimony was legally incompetent on that account.'

and held that the testimony was erroneously excluded.

The testimony of Mr. Barrow did go to the merits of the case and perhaps it could have been substituted from other sources. Yet, it is to be said that, although the witness was the attorney of record for the defendant and apparently was present at the trial, he did not participate actively in the proceedings and did not, so far as we discover, examine witnesses or address the court. The giving of testimony by an attorney in the cause is a matter of professional ethics rather than of evidence ruling or trial procedure. The practice, except in formal matters or when essential to the ends of justice, is disapproved; but the court's ruling was not judicial error. Pull v. Nagle, 156 A. 271, 9 N.J.Misc. 987 (Sup.Ct.1931).

Appellant's second point is that the testimony by the defendant of statements made by Mr. Barrow and the testimony by Mr. Barrow of conversations with the child were inadmissible. The testimony given by the defendant about what Mr. Barrow had said to her was slight and immaterial. Mr. Barrow's testimony was concerning his observation of the child and the reaction of the child to his surroundings. Such few remarks attributed to the child as were given in the testimony did not go to contested facts but to the child's emotional reactions. The rules of evidence are somewhat relaxed in trials having to do with a determination of custody of an infant where it is necessary to learn of the child's psychology and preferences. Therefore it is sometimes pertinent to bring to the court's knowledge the temperament, disposition and reactions of the child by testimony that borders upon hearsay in that it embraces a recital of the child's remarks. Such testimony, however, is not strictly hearsay because the objective and the result are to look into the child's mind and not to establish the truth or falsity of other matters set up as facts; and instances of it in ...