Fiore v. Fiore, A--714

• Decision Date: 10 March 1958
• Docket Number: No. A--714,A--714
• Citation: 49 N.J.Super. 219,139 A.2d 414
• Parties: Lucile FIORE, Plaintiff-Appellant, v. Albert FIORE, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 219

49 N.J.Super. 219

139 A.2d 414

Lucile FIORE, Plaintiff-Appellant, v. Albert FIORE, Defendant-Respondent.

No. A--714.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 24, 1958.

Decided March 10, 1958.

Walter R. Gottschalk, Hoboken, for plaintiff-appellant.

David Cohn, Paterson, for defendant-respondent.

Before Judges PRICE, HANEMAN and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is taken from two orders of the Matrimonial Division which contained (a) certain visitation and overnight custody rights in favor of defendant-father, with a provision that defendant need not pay support for any given week if defendant's rights were interfered with; (b) an award of $25 per week support for the two infant children of the marriage, and (c) a denial of more than $100 counsel fee to plaintiff--the latter two, on grounds of insufficiency. Appellant's present attorney is the last of several retained by plaintiff in this litigation.

Prior to a discussion of this case on its merits, mention must be made of the practical difficulties encountered in discerning what the facts and issues are. Firstly, the great majority of the typewritten record is outrageously illegible; secondly, the orders and motions which should give a picture of the prior proceedings are not in logical or chronological order, thus rendering the past procedure difficult of comprehension; thirdly, not all the necessary pleadings have been made part of the record; finally, the plaintiff's brief is a hodge-podge which makes it difficult, if not impossible, to identify plaintiff's grievances other than to say that plaintiff and her counsel seem to be displeased with everything which has heretofore transpired.

From the briefs and a deficient record we gather the following. Plaintiff filed this suit for separate maintenance on December 9, 1954. The action was dismissed in April 1956. Plaintiff appealed. The Appellate Division reversed an overnight custody provision because no proof had been taken pertaining thereto. This opinion, not officially reported and not included in the record by appellant, was rendered on July 31, 1956. Pursuant to the mandate the trial court took testimony in Jersey City on November 14, 1956 and on December 20, 1956. Thereafter, the trial judge heard testimony in Newark on January 11, 1957, February 1, 8, 15 and March 22. Because of plaintiff's counsel's absence an order was not signed until June 27, 1957. This order was amended on August 23, 1957, and together these orders contain the provisions which are the bases of this appeal. While this case, with a Hudson County venue, was pending, plaintiff filed in October 1956 a matrimonial action for divorce with venue laid in Monmouth County. The assignment judge of Hudson County granted a stay of this second action on defendant's motion to consolidate the second case with the one pending in Hudson County.

Appellant argues that the trial judge had no jurisdiction to try the issues of custody and support since these issues were encompassed by the second suit. There are two short but obvious answers to this contention. The first is that the second action was stayed in view of plaintiff's prior action in Hudson County, and the second is that the trial court has no discretion when a mandate issues from an appellate court. It is under a duty to obey the mandate.

'When an order of an appellate court goes with its Remittitur to the court of original jurisdiction, it is there for the purpose of being carried into effect, and not for revision, correction or reversal.' Isserman v. Isserman, 2 N.J. 1, 5, 65 A.2d 508, 511, (1949); State v. Lefante, 27 N.J.Super. 320, 322, 99 A.2d 375 (App.Div.1953).

The second point raised in appellant's brief is that the trial judge had been reassigned to the Law Division in Essex County and he therefore lost jurisdiction over the case. This argument is reminiscent of the technical grounds which prevailed under the New Jersey Constitution of 1844 but not under our present Constitution. The trial judge was reassigned by order dated December 17, 1956, to take effect January 2, 1957. A companion order directed him to continue the performance of his matrimonial court duties in the Hudson County vicinage. The records of the Administrative Office so state. Moreover, on the hearing on January 11, 1957 present counsel for appellant was so advised by the court. To raise this point on appeal borders on presumption. Additionally, the trial judge had already heard two days of testimony on the issues covered by the mandate of this court. We find not an iota of reason upon which to bottom this frivolous argument.

Appellant charges the trial court with non-compliance with R.R. 4:98--8(a) pertaining to the requirement that a probation office investigation and report shall be obtained before the award of custody and the rights of visitation. Appellant conceded that a Hudson County probation office investigation and report were obtained, the report was placed on file and a copy of the report was received by the attorneys for plaintiff and defendant. The trial record shows that the investigator who made the investigation and report was available for cross-examination by each side and that both attorneys waived cross-examination. Appellant's present attorney contends that, since plaintiff was living in Monmouth County at the time of the hearings, the probation office of Monmouth County and not of Hudson County should have made the investigation and report and the trial court did not therefore comply with the above stated rule. The admitted facts refute this contention. The trial court acted properly and did comply with the rule.

On oral argument appellant's counsel conceded that defendant had the right to visit with his children, even volunteered that such right should be unlimited provided the visits did not interfere with the eating and sleeping times and habits of the two infants. These concessions are not persuasive in view of the trial court's finding on at least two occasions that plaintiff failed to comply with the terms of the order of visitation and that plaintiff's explanations were neither convincing nor made in good faith.

Plaintiff also argue that the overnight visitation rights of the defendant extening from 5:00 p.m. Friday to 5:00 p.m. Sunday on the last week-end of each month should be set aside because of the tender ages of the two children. The testimony does not bear out the argument. The record establishes the friendly relationship existing between the second child, about three years of age, and the father; that, as to the older child, whose age is less than five, no trouble took place at first but, as she grew older, she exhibited tantrums and committed acts of disrespect towards her father. We are convinced that her actions were the result of plaintiff's campaign against the child's father. We are reminded of the ancient saying that as the twig is bent so grows the tree.

Some of the representations made at oral argument by plaintiff's counsel are not borne out by the transcript. For example, a statement was made that a Dr. DeSpirito had examined the children on behalf of defendant and that he had not been called to testify because the doctor would not back up the court's order of visitation or the defendant's visitation rights. The record shows that on the specific trial day the doctor was not available in the morning because of an operation but was willing to appear about 4:00 o'clock. Counsel were so advised by the trial judge. Defendant did not insist on waiting for this doctor but submitted his case on the then record. Defendant's counsel's characterization of opposing counsel's charge on this point as 'wild' is well taken.

The record amply sustains the trial court's general findings on support, visitation and counsel fees.

R.R. 1:5--4(b) states in part:

'On a review of any cause * * * involving issues of fact not determined by the verdict of a jury, new or amended findings of fact may be made, but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'

This court has said:

'Beyond that, every intendment is in favor of the judgment under review, and we should not disturb the court's finding of fact unless we are well satisfied that the finding is a mistaken one.' Capone v. Norton, 11 N.J.Super. 189, 193, 78 A.2d 126, 128 (App.Div.1951), affirmed 8 N.J. 54, 83 A.2d 710 (1951); 5 C.J.S. Appeal & Error § 1533.

However, we cannot sustain the trial judge's order of August 23, 1957 insofar as it provides for abatement of support payment for the children if defendant's visitation and overnight custody rights are interfered with by plaintiff or members of her family. The welfare of the child is the primary, paramount and controlling consideration in determining the question of visitation and custody of a minor child. The legal rights and claims of either parent and the wishes and personal desires of said parent must yield, if opposed to what the court, in the discharge of its duty, regards the welfare of the child to be. True, it is recognized that the mother is the natural custodian of a child. In contests for the custody of minor children, the law favors the mother. If she is a fit and proper person to have the custody of her children, other things being equal, the mother should be given their custody. Dixon v. Dixon, 71 N.J.Eq. 281, 71 A. 1133 (E. & A. 1906). But neither father nor mother has the greater Right to the custody of the child in a contest between them. Turney v. Nooney, 5 N.J.Super. 392, 397, 69 A.2d 342 (App.Div.1949). Thus, the rule that a mother should be given preference in awarding the custody of her children is not inflexible. There are circumstances under which the best interests of children will be served by giving their custody to their father or Some other person, even though the children are of tender age...