Gosschalk v. Gosschalk

• Decision Date: 06 February 1958
• Docket Number: No. A--382,A--382
• Citation: 48 N.J.Super. 566,138 A.2d 774
• Parties: Eddy GOSSCHALK, Plaintiff-Respondent, v. Franciska Jokl GOSSCHALK, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 566

48 N.J.Super. 566

138 A.2d 774

Eddy GOSSCHALK, Plaintiff-Respondent, v. Franciska Jokl GOSSCHALK, Defendant-Appellant.

No. A--382.

Superior Court of New Jersey.

Appellate Division.

Argued Jan. 20, 1958.

Decided Feb. 6, 1958.

Samuel A. Bloom, Millburn, for defendant-appellant.

Nicholas S. Schloeder, Union City, for plaintiff-respondent.

Before Judges CLAPP, JAYNE and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is from a judgment Nisi in favor of plaintiff-husband against defendant-wife, based upon the statutory grounds of desertion, N.J.S. 2A:34--2(b), N.J.S.A.

The parties were married in New York on July 24, 1947 at which time they were both Dutch nationals visiting this country. Both had previously been married and were parents of grown children. Their respective spouses had died. No child has been born of this marriage. Prior to the marriage, they executed an antenuptial property agreement in the presence of the Netherlands' Vice Consul in New York City. The period between the date of the marriage and November, 1950 was spent in numerous trips both here and abroad in conjunction with plaintiff's spice business as an importer and exporter.

In 1947 when plaintiff arrived in the United States he did so as a temporary visitor, and defendant, as plaintiff's prospective bride, also came as a temporary visitor. After the marriage and until the end of the summer season, plaintiff and defendant stayed at a summer house in Asbury Park and, when their summer occupancy expired in September 1947, defendant returned to Europe. In June or July, 1949, they again visited the United States on a visitor's visa, staying at hotels in New York City until December 12 or 14, when they left for France and then Holland until November 1950.

It is particularly the period subsequent to November 1950, when respondent returned to this country under a 'visitor's visa' which had endorsed thereon the reference to his right to a 'treaty trader's' visa had there been an appropriate treaty between the United States and the Netherlands in effect, with which we concern ourselves.

Plaintiff, without defendant, next visited the United States in November 1950 on a visitor's visa for a period of three months. He obtained one extension of that visa, which extension was to expire on May 8, 1951. On May 4, 1951 he filed an application for a second extension of six months. At that time he specifically represented that he was in possession of a 'return passage or ticket'; that his mailing address was 141st Street, Flushing, Long Island, New York, and that:

'I have a 3(2) (Visitor's Visa--formerly under 8 U.S.C.A. § 203(2); presently 8 U.S.C.A. § 1101(a)(15)(B)) visa only because the Dutch treaty is not yet in effect.'

His visa contained an endorsement:

'Mr. Eddy Gosschalk would be eligible for a 3(6) visa if the appropriate treaty between the United States and the Netherlands were in effect.

'James A. Niederjohn,

'American Vice-Consul'

The reference to 3(6) is to the former provision of 8 U.S.C.A. § 203(6), which now is incorporated in 8 U.S.C.A. § 1101(a)(15)(E). On the expiration of the second extension he applied for a third extension of six months. This application was dated June 2, 1952. The third application contained the same address and statement with respect to his status.

In May or June 1951, defendant and one of her daughters came to the United States from Holland. After a short stay in New York City, they rented a summer house in Asbury Park where they remained together until August 1951. At that time defendant and her daughter returned to Holland. Plaintiff remained in Asbury Park until October 15, 1951, when he moved to 157 Edgar Street, Weehawken.

Plaintiff testified that during 1950 he decided to come to the United States inasmuch as he had large interests over here, and that it was then that he first formulated the desire to become a permanent resident of the United States. On July 17, 1950 plaintiff obtained from the United States Consul in Rotterdam a confirmation of his application for immigration to this country, containing Dutch quota numbers for himself, his wife and defendant's two children. Upon his last arrival plaintiff, under a corporate name, engaged in the importing and exporting business with offices at 79 Wall Street, New York City. The books of the company showed it had done a business of $500,000 in 1953.

In the spring of 1952 plaintiff advised defendant that he wanted to purchase a home in Asbury Park. The record indicates a down-payment of $500 by plaintiff on the purchase of a house in Asbury Park. Defendant stated in a letter in strong and unmistakable language her refusal to live with plaintiff in Asbury Park and 'As far as I am concerned, buy yourself a house in Honolulu' and that she 'had enough of it.' Nevertheless, as a result of exchange of correspondence, defendant was finally persuaded to come to America in September 1952. After remaining for a day or two in Weehawken, plaintiff, defendant and a daughter of defendant went to Montreal, Canada, to obtain an immigration visa. In 1951 plaintiff's file had been transferred from Rotterdam to Montreal so that he would not have to go all the way back to Rotterdam when his number was reached. Plaintiff failed to get an immigration visa and all of them returned to Weehawken.

On November 7, 1952 defendant went back to Holland. According to plaintiff, his next news about defendant was that plaintiff's assets had been seized in Holland at the suit of the defendant, and a court order, similar to our alimony Pendente lite, was obtained by defendant. The amount was about $200 a month in American dollars and equivalent to about $500 in purchasing power. The Dutch court records show that plaintiff received permission to file a counterclaim on December 16, 1953, but did not do so until March 24, 1955--more than 15 months later. Plaintiff in the Dutch suit, defendant here, did not move her case in Holland until November 6, 1956, after six trial days in the New Jersey action, almost four years after her suit was begun and two years after the filing of this action.

In February 1953 plaintiff, in response to a summons from the Department of Justice, was examined as to his claim as a treaty-trader, submitted the books of his business enterprise, and secured an extension. Before its termination plaintiff obtained his immigration visa, October 16, 1953. Plaintiff testified that he continued to live at 157 Edgar Street, Weehawken, until April 1955, when he moved to his address at 7200 Boulevard East, North Bergen, New Jersey.

On November 23, 1954 plaintiff filed this suit against his wife. Following a substitution of attorneys in January 1956, the trial began on April 5, 1956 and continued until December 6, 1956--taking up parts of nine trial dates. On January 25, 1957 our trial court awarded a judgment Nisi to the plaintiff, pursuant to an oral opinion.

No appeal is taken from the trial court's determination that a cause of action has been established, except on the grounds (a) that jurisdiction is lacking under N.J.S. 2A:34--10, N.J.S.A. in that neither party was a Bona fide resident of New Jersey for two years next preceding the commencement of the suit, November 23, 1954; (b) that, for the fact that since December 31, 1952 there has been pending in the District Court of Amsterdam, Holland, a suit by the wife against the husband for divorce on the ground of adultery and, in the alternative, a suit for separation on the grounds of excesses, ill-treatment and gross insults, and a counterclaim for similar relief by the husband against the wife, the Chancery Division case is barred and the asserted period of willful and obstinate desertion claimed by plaintiff is suspended or tolled; and (c) at argument, an additional ground that, since both are nationals of Holland and since the law suit in Holland was filed before this action, we must stay our action, await and abide the judgment of the Dutch courts in order not to violate the principle of comity.

In Schack v. Trimble, 48 N.J.Super. 45, 52, 137 A.2d 22, 26 (App.Div.1957), we stated:

'It is true that every intendment is in favor of the judgment under review and we should only make our own finding if we are well satisfied that the trial court's finding is a mistaken one and offends the interest of justice. New Jersey Highway Authority v. J. & F. Holding Co., 40 N.J.Super. 309, 317, 123 A.2d 25 (App.Div.1956). However, respect for the trial court's finding imposes no restraint on our power fully to analyze the proofs and reach a conclusion whether or not the finding is consistent with the evidence. Gagliano v. Maggio, 32 N.J.Super. 219, 225, 108 A.2d 185 (App.Div.1954), certification denied 17 N.J. 57, 109 A.2d 814 (1954). The exercise of our permissive power is brought into play when 'required to do justice in the particular case.' Midler v. Heinowitz, 10 N.J. 123, 128, 89 A.2d 458, 461 (1952).'

A studied analysis of the events subsequent to November 1950 is necessitated by the fact that appellant wife contends that the Chancery Division lacked jurisdiction insofar as respondent was not a Bona fide resident of this State for the two years next preceding the commencement of the action within the contemplation of N.J.S. 2A:34--10, N.J.S.A. It is well established that the words 'bona fide resident' are synonymous with 'domiciliary' and mean that plaintiff or defendant must be actually domiciled within New Jersey. Voss v. Voss, 5 N.J. 402, 406--407, 75 A.2d 889 (1950). The term 'residence,' as used in our Divorce Act, includes not only the Factum of residence but also the Animus manendi since the residence required by the statute is equivalent to domicile. Thus the question resolves itself to a determination as to whether the respondent was a New Jersey domiciliary on or before November 1952, two years prior to the institution of this suit.

It is generally...