Swanson v. Swanson

• Decision Date: 02 November 1950
• Docket Number: No. A--455,A--455
• Citation: 10 N.J.Super. 513,77 A.2d 477
• Parties: SWANSON v. SWANSON. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 513

10 N.J.Super. 513

77 A.2d 477

SWANSON v. SWANSON.

No. A--455.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 2, 1950.

Decided Nov. 2, 1950.

Abraham J. Slurzberg, Jersey City, argued the cause for appellants (Joseph Persky, Jersey City, attorney).

Louis Santorf, Paterson, argued the cause as prosecutor for the court.

Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

A concise chronological narrative of some of the material antecedent events will serve to display the background which occasioned the proceedings under review.

On September 2, 1949, one of the appellants, Lillian Swanson, instituted a civil action in the Chancery Division of the Superior Court seeking a judgment of absolute divorce from her husband on the ground of desertion. She alleged in her complaint that at the time of the desertion she was a Bona fide resident of the State of New Jersey and had been ever since the cause of action arose and for more than two years next preceding the commencement of the action.

Parenthetically, it seems evident that she subscribed to the conventional affidavits accompanying the original and amended complaints and to an affidavit of inquiry but never personally appeared before the notary whose signature purported to give authenticity to the jurats.

At the final hearing before the Advisory Master to whom the cause was assigned, she and the other appellant, John De Diminicantanio, hereinafter designated as John De, testified that she had resided in the dwelling of John De at No. 1394 Ringwood Avenue, Haskell, Passaic County, New Jersey, continuously since June 1946. There was also testimony relating to the employment of her husband by John De and to the school attended by her children, which was designed to bolster the proof of residence.

Evidently certain features of the presentation of the testimony aroused the suspicions of the Master, and he caused an investigation to be pursued which tended to confirm the conjectural apprehension of willful false swearing.

Pursuant to an order of the Superior Court conferring upon him the authority to conduct the prosecution, Louis Santorf, a counsellor at law, on March 15, 1950, filed a petition in the still pending matrimonial cause charging the appellants and one Eleanor Algozina respectively in three separate counts with criminal contempt of court. Whereupon, upon the advice of the Advisory Master, an order issued out of the Superior Court on March 15, 1950, addressed to the three accused directing them to show cause 'before this court at the Chancery Chambers, Administration Building, No. 63 Hamilton Street, Paterson, New Jersey, on Tuesday the 28th day of March, next, at 10:00 o'clock in the forenoon or soon thereafter as the court may attend to the same why they, or each of them, should not be adjudged guilty of contempt of this court, criminal in nature, in that they made false, untrue and perjured statements, under oath, in the proceedings held by this court in the above entitled matter, and for the filing of false and improper pleadings and affidavits in such cause.'

Copies of the petition and order were served upon John De and Eleanor Algozina personally within the state, but the service was made upon Mrs. Swanson in the State of New York.

At the inception of the hearing before the Advisory Master on March 28, 1950, a severance of the prosecutions was granted on the application of Mr. Santorf. The hearing of the charge against Eleanor Algozina was adjourned. The trial of Mrs. Swanson was thereupon moved.

Counsel for Mrs. Swanson, announcing that his appearance and that of his client was special and qualified, initially presented several motions of a jurisdictional pertinence to one of which specific reference will be hereinafter made. He subsequently interposed most of the same objections on behalf of John De, whose trial immediately followed. The motions were denied, and the Master advised the entry of a judgment adjudging the present appellants guilty and that Mrs. Swanson be sentenced to serve a term of imprisonment of sixty days in the common jail of Passaic County, and John De be given a sentence of thirty days. Such judgments were accordingly entered by a judge of the Superior Court.

Counsel has marshalled eleven points in his studiously prepared brief. However, we are obliged to remark at the outset that several of the points so well devised have been adjudicated in the very deliberative opinion rendered by Vice Chancellor Berry in In re Caruba, 139 N.J.Eq. 404, 51 A.2d 446 (Ch. 1947), affirmed 140 N.J.Eq. 563, 55 A.2d 289 (E. & A. 1947), and in the decision recently filed in Zimmerman v. Zimmerman, 78 A.2d --- (App.Div. 1950), relating to cognate questions which have arisen in view of the transformed court structure erected by the new Constitution.

The subjects embraced by those decisions pertain to (a) the power and authority of an Advisory Master to hear and advise the judgment to be entered in a contempt proceeding; (b) whether perjury or false swearing by a witness before a Master in a cause in Chancery constitutes contempt and whether punishment therefor may be lawfully imposed; (c) whether an actual obstruction of the administration of justice is essential to the offense; (d) the inherent power of Chancery independent of statutory authority; (e) the power of the legislature to impair the inherent jurisdiction of Chancery (f) whether contempt either civil or criminal may now be lawfully prosecuted in the action in which it occurrs, Rule 3:80--2; and (g) the nature and scope of an appeal to the Appellate Division of the Superior Court.

The former opinion in the Caruba case having been affirmed by the Court of Errors and Appeals, and the latter in the Zimmerman case being a decision of this court, a reproduction here of the determinations lucidly expressed in those precedents would be conspicuously redundant, and an undertaking by this court to remodel them would be inexcusably presumptuous.

We accordingly regard them as decisive of the points to which they relate, many of which are sought to be projected anew in the argument of the present appeals.

The separate trials of the appellants under materially divergent circumstances oblige us to deal with each conviction independently.

The ground of appeal among those assigned on behalf of the appellant Mrs. Swanson, which predominantly engages our attention, is that in the proceedings against her the court lacked jurisdiction of the person of the accused.

It is to be immediately acknowledged that (a) Mrs. Swanson invoked the jurisdiction of our Superior Court in quest of a judgment of divorce; (b) that the matrimonial action remains undetermined and undismissed; (c) that the petition and order to show cause are entitled in the main action; (d) that the petition and order to show cause in the contempt proceeding were not served upon Mrs. Swanson within the state; (e) that Mrs. Swanson was personally present at the hearing before the Master; and (f) that the judgment embodies a sentence of imprisonment.

It is fundamentally imperative in the consideration of these appeals to recognize the significant distinction between civil and criminal contempts.

A civil contempt proceeding is essentially remedial. Its usual object is to coerce a party for the benefit of another party to do or refrain from doing some act specified in the order of the court. And so, if imprisonment be ordered, it is coercive in character but nevertheless remedial in purpose, and to that end relates to something to be obeyed by the accused by the compliance with which he may discharge himself.

Contempts classified as criminal contempts, as the designation itself implies, are dissimilar in that they are intrinsically offenses against organized society. True, they may 'occur' in the course of a private litigation and bear that relationship to the civil cause, but basically they raise an issue between the public and the accused. Hence, if imprisonment be imposed in a proceeding for criminal contempt, it is by analogy with the criminal law punitive in its purpose. There are numerous illustrative decisions, a generous supply of which may be found in the footnotes in 12 Am.Jur. 392, sec. 6. Of our own adjudications it will suffice to cite Staley v. South Jersey Realty Co., 83 N.J.Eq. 300, 90 A. 1042, L.R.A. 1917 B (Sup.Ct. 1914).

Assuredly Mrs. Swanson and, indeed, John De as well were each charged with the commission of a criminal contempt.

In 1924 Chancellor Walker very definitely held that although the process may be an order to show cause, yet 'such process must be Served within this state to lawfully initiate a proceeding against a person charged with criminal contempt of court.' (Emphasis his.) Brown v. Brown, 96 N.J.Eq. 428, 430, 126 A. 36, 37 (Ch. 1924).

In the decision rendered in In re Hayden, 101 N.J.Eq. 361, 139 A. 328, 330 (Ch. 1927), fundamental significance was ascribed to the fact that 'the respondent was duly served (with) the order to show cause.'

The attitude of the special prosecutor toward the respondent's objection to the jurisdiction may be divulged as an incident of the proceeding. He said: 'If your Honor please, in view of the challenge to the jurisdiction of the Court insofar as the service upon Mrs. Swanson is concerned, we must advise the Court that service was had upon Mrs. Swanson personally in the State of New York and there is no question in my mind that we cannot force her to come into the State of New Jersey on that order to show cause. * * * In view of that, we will now move to vacate the order to show cause and issue an order of attachment against the defendant Swanson--she is here--and have her committed to the county jail as provided by the attachment as provided by the rules. * * *'

The Master, however, chose to overrule the challenge addressed to the jurisdiction, declined to issue...