Laurino v. Laurino, A--614

• Decision Date: 30 October 1953
• Docket Number: No. A--614,A--614
• Parties: LAURINO v. LAURINO et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 119

28 N.J.Super. 119

100 A.2d 301

LAURINO v. LAURINO et al.

No. A--614.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 13, 1953.

Decided Oct. 30, 1953.

Maurice A. Potter, Long Branch, for appellants (Potter & Fisher, Long Branch, attorneys).

John Warren, Jr., Red Bank, for respondent (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

The plaintiff Maria Felicia Laurino and the defendant Enrico Laurino were married on November 15, 1917, and lived and toiled together until June 1949. They reared seven children. They acquired as tenants by the entirety a home in Oceanport, a farm of 60 acres, and a parcel of land of five acres, both in Shrewsbury. They derived their livelihood from the sale of the products of the farm. In the latter years they customarily resided during the winter months in modest quarters in Miami, Florida.

On October 18, 1948 they executed a deed purporting to convey the farm to their son Dominick. On November 19, 1948 they executed a deed conveying the home to their daughter Nancy. In January 1951 Enrico Laurino instituted an action against his wife in the Circuit Court of the Eleventh Judicial Circuit in Dade County, Florida, in which on March 1, 1951 it was decreed that 'this Court has jurisdiction of the parties, personal service having been had upon the defendant.' The marriage was thereby dissolved and alimony in the sum of $25 per week was directed to be paid by Enrico to Maria.

The present action was instituted on July 2, 1951 in which the plaintiff Maria seeks a judgment declaring the Florida decree of divorce to be null and void, directing the defendant to provide the plaintiff with suitable support and maintenance, and adjudging that the son Dominick retains title to the farm in trust for the plaintiff and defendant and should now reconvey it.

The foregoing epitomical statement discloses a background of the principal factual events. We are requested by this appeal to review the propriety of the judgment rendered in this action which resolves that the Florida divorce decree is void, awards the plaintiff support and maintenance in the amount of $35 a week, a counsel fee of $1,000, and adjudges that the plaintiff by reason of a constructive trust has ' a life estate in the farm property in common with the right of survivorship in her with the defendants' Dominick and his wife, and that the latter account for the rents, use and profits acquired by them from the property since the conveyance on October 18, 1948, less legally deductible expenditures.

We have studiously examined the transcript of the testimony and notwithstanding our appreciation of the advantageous opportunity of the trial court to evaluate the credibility of the witnesses, we are not persuaded that the evidence possessed the essential convincing quality adequately to sustain the burden of establishing the invalidity of the Florida decree of divorce. Rule 1:2--20, R.R. 1:5--3; Rule 4:2--6, R.R. 2:5. The judgment of the sister state raises a presumption that the court possessed jurisdiction over the subject matter and the persons, and the burden of demolishing the judgment rests heavily upon the one who assails it. Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951); Ballentine v. Ballentine, 112 N.J.Eq. 222, 164 A. 5 (E. & A.1933).

The statutory jurisdiction of our courts to award maintenance (R.S. 2:50--39, now 2A:34--24) is applicable only where the relationship of husband and wife exists. Peff v. Peff, 2 N.J. 513, 67 A.2d 161 (1949); Isserman v. Isserman, 11 N.J. 106, 114, 93 A.2d 571 (1952). We therefore conclude that the judgment, in so far as it determines the invalidity of the divorce decree and awards maintenance to the plaintiff, should be reversed. The weekly alimony has been continuously paid in conformity with the terms of the Florida decree. Our consideration of the meager information made available to us concerning the extent of the professional services rendered by counsel for the plaintiff in the matrimonial branch of the case induces us to reduce the allowance to $500. An allowance to counsel for the unsuccessful party seems to have been just. R.R. 4:55--7(a).

Our study of the evidence, however, does not warrant the conviction that the conclusions of the trial judge relative to the conveyance of the farm land are unsustained.

Assuredly in the fall of 1948 the defendant for some reason desired to dispose of or disestablish his record ownership in the real estate in which he shared title with his wife. He urged her to participate in the accomplishment of that purpose. The trial judge found a disclosure of the associated circumstances in the uncontroverted testimony of the plaintiff. She testified in explanation of the conveyance to the son Dominick that the...