Lysick v. Lysick

• Decision Date: 06 June 1966
• Docket Number: No. A--456,A--456
• Citation: 91 N.J.Super. 394,220 A.2d 702
• Parties: Frank LYSICK, Plaintiff-Respondent, v. Elizabeth LYSICK, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 394

91 N.J.Super. 394

220 A.2d 702

Frank LYSICK, Plaintiff-Respondent, v. Elizabeth LYSICK, Defendant-Appellant.

No. A--456.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 21, 1966.

Supplemental Briefs Submitted April 7, 1966.

Decided June 6, 1966.

Frederick C. Vonhof, Newark, for appellant.

Monroe Ackerman, Newark, for respondent (Ralph A. Villani, Newark, attorney, Norman Maranz, Elizabeth, on the brief).

Before Judges SULLIVAN, LEWIS and KOLOVSKY.

PER CURIAM.

Defendant appeals from a Chancery Division judgment awarding her husband a divorce for simple desertion.

Following oral argument of the appeal, we requested the trial court to file specific findings of fact, R.R. 4:53--1, supplementing the letter opinion which had been filed prior to the entry of the judgment. Counsel for the respective parties have submitted memoranda directed to the 'Findings of Fact and Conclusions of Law' so filed by the trial court (hereinafter referred to as the trial court's 'supplemental opinion').

The parties were married on September 19, 1931. They have three children. The older son, Francis, and the daughter, Joyce, are married and maintain homes of their own. The younger son lives with the mother in a house at 49 Finlay Place, Newark, owned by the husband and wife as tenants by the entirety.

Beginning in about 1947 the matrimonial seas became stormy. The husband blames the wife's drinking habits; she says the fault was his. Police were called by the wife on a number of occasions. In 1953 the husband remained away for some three months; he says the wife chased him out of the house. In the latter part of 1954 the husband was away for some five or six months.

On February 6, 1956 the wife filed a three-count complaint against the husband in the Chancery Division. The first count sought separate maintenance, charging the husband with cruelty and alleging that he left the matrimonial home on January 30, 1956. The second count sought to establish a half-interest in the family automobile; the third sought recovery of $550 the husband allegedly misappropriated. The proceedings were dismissed on March 9, 1956 on the wife's application, the parties having resumed cohabitation.

Early in July 1957 the husband and wife, their daughter, who was then unmarried, and the younger son drove to Florida for a vacation. They returned to their home at the end of the month.

On August 1, 1957 the husband walked over to the nearby apartment of his elder son. He has not lived at the Finlay Street house since. Whether this was because the wife prevented him from returning or because he did not want to return was a contested issue at the trial of this action.

However, it is undisputed that on January 21, 1958 the wife filed a complaint for support in the Juvenile and Domestic Relations Court of Essex County, charging that the husband, then residing on Sanford Avenue in Newark '* * * altho capable to do so has for the past several weeks refused and failed to provide adequate support and maintenance of his family consisting of myself, and one minor child to wit: Eugene--9yrs. contrary to 'An Act concerning the Juvenile and Domestic Relations Court,' Revised Statutes, 1951 Title 2A:4--41, effective January 1, 1952, and the supplements thereto and amendments thereof.'

(At the trial of the present action, the husband testified that he had been paying the wife $40 per week since their separation on August 1, 1957, but had stopped the payments because she had refused to let him obtain his set of tools which were in the cellar of the house.)

The complaint for support was tried in the Juvenile and Domestic Relations Court on February 3, 1958 and resulted in an order in which the court stated:

'The evidence being closed, I did decide that the complaint be sustained. The defendant be ordered to pay $40.00 a week thru the probation department for the support of his family. The defendant to also pay medical expenses and have child visitations on alternating Saturdays and Sundays, from the date of this my order.'

Further orders were entered by the Juvenile and Domestic Relations Court on October 1, 1958 and March 16, 1960, following references of the matter to the court by the probation department because of disputes between the husband and wife relating to, among other things, the husband's tool set, visitation rights and payment of the wife's medical bills. The October 1, 1958 order provided for a continuance of the prior order; the March 16, 1960 order increased the support payments to $42 per week. The latter order remained in effect until early 1964 when it was superseded by an order entered on February 28, 1964 in the divorce proceedings which the husband had instituted in the Chancery Division on October 1, 1963. The Chancery order required the husband to 'continue to pay' the wife $84 every other week until the further order of the court.

The complaint for divorce filed by the husband charged that the wife had deserted him 'on or about August 1, 1957, ever since which time and for more than two vears last past she has willfully, continuously and obstinately deserted him.' Although the complaint alleged that 'there had been no previous proceedings between the plaintiff and defendant in any court affecting the marriage,' the existence of the prior proceedings was brought to the court's attention by defendant.

In its supplemental opinion the trial court found that:

'The plaintiff left the marital domicile on August 1, 1957 with the intention of returning and not with the intention of deserting. * * * (The wife) made it impossible for him to return and her adamant position * * * made overtures futile. * * * In find that he made attempts at overtures that were rebutted and that further overtures would have been futile under the cases in this State.'

Neither the supplemental opinion nor the judgment Nisi sets forth the date of the wife's desertion; therefore 'the date alleged in the complaint (on or about August 1, 1957) must be regarded as controlling.' Field v. Field, 31 N.J.Super. 139, 152, 105 A.2d 863, 871 (App.Div.1954).

While giving due deference to the opportunity of the trial judge to hear and see the witnesses, our review of the record satisfies us that the evidence was not such as to support a finding that the husband made a genuine effort to induce his wife to resume living with him nor such as to support the finding that overtures on the husband's part would be futile.

As the court said in Henderson v. Henderson, 134 N.J.Eq. 363, 35 A.2d 686 (E. & A.1944):

'It was the burden of the husband to prove his case and all uncertainties of fact should be resolved against him. Gordon v. Gordon, 89 N.J.Eq. 535, 537, 105 A. 242. * * * there is no satisfactory proof of obstinacy and this is fatal in an action based on desertion. To prove obstinacy it must be shown to the satisfaction of the court that the wife deliberately and persistently refused to return to her husband's home upon his sincere solicitation as under the circumstances of the case he ought to make.' (at p. 368, 35 A.2d at p. 689, citations omitted)

An exception to this rule is recognized where it would be futile for the husband to make such advances or overtures. Hall v. Hall, 60 N.J.Eq. 469, 470, 46 A. 866 (E. & A.1900); Coyle v. Coyle, 6 N.J.Super. 141, 70 A.2d 514 (App.Div.1950); Goldberg v Goldberg, 129 N.J.Eq. 588, 20 A.2d 346 (E. & A.1941), but here again, as the court said in Hall:

'The burden rests upon the husband of showing the futility of making the effort which the law ordinarily requires of him; for it will not be presumed, in the absence of proof, that the wife will persist in continuing her desertion against the honest attempt of the husband to bring it to a conclusion.' (60 N.J.Eq., at p. 470, 46 A.2d at p. 866).

The judgment is reversed and the cause remanded for entry of judgment for defendant.

KOLOVSKY, J.A.D. (concurring):

I agree that for the reasons set forth in the foregoing opinion, the lack of proof of obstinacy requires that the judgment below be reversed and that judgment be entered for defendant.

Further, in my view, an additional ground dictates the reversal of the judgment. I am of the opinion that the trial court's finding that the wife had deserted the husband 'on or about August 1, 1957' is precluded by the contrary judicial determinations implicit in the orders for the support of the wife entered by the Juvenile and Domestic Relations Court on February 1, 1958 and March 16, 1960.

In Amadeo v. Amadeo, 64 N.J.Super. 417, 422, 166 A.2d 397 (App.Div.1960), the court said:

'The Juvenile and Domestic Relations Court is a statutory court whose jurisdiction is strictly limited to the subject matter set forth in the statute, and such jurisdiction cannot be enlarged by consent. State on Complaint of Bruneel v. Bruneel, 14 N.J. 53, 58, 100 A.2d 882 (1953); Mattox v. Mattox, 43 N.J.Super. 111, 115, 127 A.2d 893 (App.Div.1956); cf. Caravella v. Caravella, 36 N.J.Super. 447, 116 A.2d 481 (App.Div.1955). N.J.S. 2A:4--18(e), N.J.S.A., provides, in part, that the court shall have jurisdiction to hear and determine in a summary manner disputes and complaints

'e. Involving the domestic relation, where a husband or father Deserts his wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family.' (Italics ours.)

A willful failure to provide adequate support for one's wife or children constitutes such a desertion within the meaning of the statute as to confer jurisdiction. Mattox v. Mattox, above, 43 N.J.Super. at page 117, 127 A.2d 893. Of course, if plaintiff (wife) had left her husband without justifiable cause, his failure to support her could not be considered a desertion on his part and jurisdiction would not lie. Likewise, if the parties separated by mutual consent, jurisdiction to award support for the wife would not lie. ...