Pollino v. Pollino

• Decision Date: 24 February 1956
• Docket Number: No. M--5235,M--5235
• Citation: 121 A.2d 62,39 N.J.Super. 294
• Parties: Roy POLLINO, Plaintiff, v. Dagmar POLLINO, Defendant. . Chancery Division
• Court: New Jersey Superior Court

Page 294

39 N.J.Super. 294

121 A.2d 62

Roy POLLINO, Plaintiff, v. Dagmar POLLINO, Defendant.

No. M--5235.

Superior Court of New Jersey.

Chancery Division.

Feb. 24, 1956.

Wilentz, Goldman, Spitzer & Sills, Perth Amboy (Warren Wilentz, Perth Amboy, appearing), attorneys for plaintiff.

David I. Stepacoff, Perth Amboy, attorney for defendant.

MARIANO, J.S.C.

Plaintiff, Roy Pollino, filed a complaint for divorce against his wife, Dagmar Pollino, alleging adultery commencing in August of 1953 and running to January 8, 1954. Defendant's answer denied the alleged adultery and, as a separate defense, stated that plaintiff had been guilty of such misconduct as to disentitle him to relief, and that defendant comes into court with unclean hands.

Plaintiff, prior to his marriage to the defendant, had been married to one Mabel Devoe in March 1919. While the marriage to Mabel Devoe Pollino was in full force and effect, plaintiff committed adultery with his present wife, Dagmar Pollino, who was then 17 years of age and rendered her pregnant. Thereafter, on May 24, 1921, the plaintiff bigamously married the defendant, Dagmar Pollino, in Richmond County, New York, and lived with her continuously as man and wife until October 1946.

In the affidavit for license to marry executed by the plaintiff in New York in May 1921 (at the time of plaintiff's marriage to the defendant) Roy Pollino, though living in Perth Amboy, New Jersey, falsely swore that his place of residence was 142 Main Street, Tottenville, New York. In said affidavit, Roy Pollino further falsely swore that the proposed marriage to the defendant was his first marriage; he also perjuriously swore that he had no former wife living or dead at the time; and he further stated falsely 'that no legal impediment existed as to the right of the applicants to enter into the marriage state.'

On November 11, 1921 Raymond Roy Pollino was born to the parties to this suit.

On January 16, 1932 plaintiff, while continuing to cohabit with the defendant, sought to remove the impediment of the valid subsisting marriage to Mabel Devoe Pollino. Roy Pollino filed a petition for divorce in the Court of Chancery of New Jersey on the ground of desertion. Mabel Devoe Pollino did not contest the suit.

In his testimony in support of the suit for divorce against Mabel Devoe Pollino, Roy Pollino swore that Mabel Devoe Pollino left him on March 20, 1920, one year after the marriage. Roy Pollino further testified in the hearing for divorce from Mabel Devoe Pollino that he sought out his then wife on the following morning (March 21, 1920) at which time she refused to return to him. In the said hearing Roy Pollino testified that he solicited Mabel's return one or two days thereafter (March 22 or 23, 1920), again without success. Thereafter, Roy Pollino testified in the divorce proceeding against Mabel Devoe Pollino that some five years later (1925) he again asked Mabel Devoe Pollino to return, and again his advances were repulsed. At the time of this alleged solicitation in 1925 Roy Pollino was actually living with Dagmar Pollino and his child, Roy, Jr., born of Dagmar Pollino, at Jacques Street, Perth Amboy, New Jersey.

As a result of this testimony by Roy Pollino a decree Nisi was advised in favor of Roy Pollino and against Mabel Devoe Pollino on October 20, 1932.

On July 12, 1933 Roy Pollino again went through a ceremonial marriage with the defendant Dagmar Pollino; this time the ceremony was performed in the Borough of Brooklyn, New York. On the occasion of this second marriage to Dagmar Pollino the plaintiff once again falsely swore. This time he swore that he was residing at 299 Central Avenue, Jersey City, New Jersey, when in fact he was continuing to reside with the defendant, Dagmar Pollino, at Jeffries Street, Perth Amboy, New Jersey.

The parties continued to reside together thereafter until October 1946. Plaintiff, Roy Pollino, had testified in the case at bar that a few years prior to 1947 he discovered that his wife, Dagmar Pollino, had a propensity for consorting with other men. Roy Pollino left his wife in 1946, and in 1947 instituted divorce proceedings (Docket No. 161/462) charging his wife with adultery alleging the same to have been committed in the latter part of January 1946 and continuing to the early part of February 1946, in West Palm Beach, Florida, and at various other times and places. Roy Pollino admits that he continued to live with her as man and wife until October 1946.

The defendant, Dagmar Pollino, in answer to the divorce proceedings instituted against her in 1947, denied the alleged adultery and filed a counterclaim for divorce alleging adultery having been committed by Roy Pollino, at various times and places.

On December 13, 1948 Roy Pollino withdrew his petition for divorce; Dagmar Pollino withdrew her counterclaim.

From October 1946 until the present time the parties have not resided together. Roy Pollino admits that he made no effort to restrain his wife from consorting with other men since his departure in October 1946.

The case at bar was instituted by Roy Pollino in June 1954, charging Dagmar Pollino with adulterous conduct on various dates from August 1953 through January 8, 1954. Roy Pollino admits that he knew in the summer of 1953 that his wife was seen in the company of her alleged paramour; he stated that he obtained this information from a private investigator named Linn. Roy Pollino states that on four separate occasions (November 27, 1953, December 2, 1954, and on January 6 and 8, 1954) he, personally, saw his wife in the company of her alleged paramour.

In the State of New Jersey divorce and nullity proceedings are regarded as equitable in nature. Being regarded as equitable in nature, various defenses available in courts of equity have been applied with the approval of our courts in divorce and nullity proceedings. Gibbs v. Gibbs, 92 N.J.Eq. 542, 113 A. 704 (Ch.1921). Among the equitable defenses urged successfully in our courts, in divorce proceedings, has been the doctrine of unclean hands, 1 Herr, Marriage, Divorce and Separation (1938), § 149, p. 155; in fact, the court has on its own motion invoked the doctrine. Ancrum v. Ancrum, 156 A. 22, 9 N.J.Misc. 795, 797 (Ch.1931).

An extended discussion of the doctrine of unclean hands is not necessary; nevertheless, attention is directed to Gluck v. Rynda Development Co., 99 N.J.Eq. 788, 134 A. 363 (Ch.1926).

The doctrine of unclean hands in equity matters has been expressed to be applicable in 30 C.J.S., Equity, § 99, pp. 496, 497 in the following terms:

'Equity will not open its doors to one who seeks its aid for the purpose of violating a contract, or who seeks to enforce alleged rights arising from a contract which he himself breached. * * *' Citing Pike v. Pike, 100 N.J.Eq. 486, 136 A. 421 (Ch.1927) with approval.

The doctrine of unclean hands has alternatively been expressed as follows: 'Equity will not aid a fraud doer,' Herder v. Garman, 106 N.J.Eq. 13, 149 A. 636 (Ch.1930); 'He that hath committed iniquity shall not have equity.' 2 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 397, p. 90.

"Unclean hands,' within the meaning of the maxim of equity, is a figurative description of a class of suitors to whom a court of equity as a court of conscience will not even listen, because the conduct of such suitors is itself unconscionable i.e., morally reprehensible as to known facts.' Vulcan Detinning Co. v. American Can Co., 72 N.J.Eq. 387, 67 A. 339, 341, 12 L.R.A., N.S., 102 (E. & A.1906).

Not only must a suitor come into equity with clean hands but he must keep them clean after his entry and throughout the entire proceedings, A. Hollander & Son, Inc., v. Imperial Fur Blending Corp., 2 N.J. 235, 66 A.2d 319 (1949).

The rule is that while general iniquitous conduct will not operate to bar plaintiff from relief by reason of unclean hands, iniquitous conduct relating to the particular matter or transaction to which judicial protection is sought will operate to bar relief. See 1 Herr, Marriage, Divorce and Separation (1938), § 149, supra. Where the relief sought by the plaintiff is the result of his own wrongdoing, where the unclean hands of the plaintiff has infected the very subject matter in litigation, the plaintiff is barred from relief in a court of equity.

In the instant case we look to the plaintiff's conduct with respect to the marriage in litigation; if plaintiff's inequitable conduct is tied up to the marriage as an element of its creation, then he is barred from relief by reason of his unclean hands. Hunt v. Hunt, 160 A. 358, 10 N.J.Misc. 675 (Ch.1932); Neubeck v. Neubeck, 94 N.J.Eq. 167, 119 A. 26, 27 A.L.R. 172 (E. & A.1922). Let us examine, then, the agreed facts to determine if plaintiff has unclean hands; and if so, let us inquire whether plaintiff's unclean hands is an element for consideration in the marriage which plaintiff now seeks to dissolve.

The plaintiff husband had committed adultery while married to Mabel Devoe Pollino. Plaintiff had bigamously married the defendant in 1921. Subsequently, in 1932, the plaintiff endeavored to change his marital status--to rid himself of his first wife (Mabel Devoe Pollino). The legal avenues available were, indeed, fraught with pitfalls. To resort to annulment proceedings was impossible since he (Roy Pollino) was the offending party, who knowingly entered into the bigamous marriage. As a matter of law, he could not prevail. Tyll v. Keller, 94 N.J.Eq. 426, 427, 120 A. 6 (E. & A.1922); 1 Mercer Beasley L.R. 61 (1932).

Under these circumstances, the only other possible avenue of approach to change the marital status of Roy Pollino was by divorce proceedings. This he undertook to do in 1932 by misrepresenting to the Court of Chancery that Mabel Devoe Pollino had deserted him. At the hearing Roy Pollino completely in disregard of his oath perjuriously testified to having made bona fide advances for the return...