Zar v. Zar
Decision Date | 04 December 1956 |
Docket Number | No. A--586,A--586 |
Citation | 42 N.J.Super. 607,127 A.2d 407 |
Parties | Elizabeth Feldman ZAR, Plaintiff-Appellant, v. Paul ZAR, Defendant-Respondent. |
Court | New Jersey Superior Court — Appellate Division |
Florence F. Forgotson, Red Bank, for appellant.
M. Marvin Soperstein, Newark, for respondent.
Before Judges CLAPP, JAYNE, and FRANCIS.
The opinion of the court was delivered
A few introductory comments will adequately explain the previous course of this litigation and the subjects of the present appeal. Mrs. Zar instituted the action in quest of a judgment for divorce on the ground of extreme cruelty. The defendant in a filed answer denied generally the allegations of the complaint. Thereafter the defendant by means of a Retraxit withdrew the answer but recorded an appearance confined to the prayers relating to the custody and maintenance of the child of the marriage, alimony, counsel fees, and costs.
Negotiations evidently ensued pertaining to those branches of the litigation, eventuating in a consent order concerning the possession of the household furniture, the interests of the parties in the residential property, the custody and financial maintenance of the child, and the fee payable to plaintiff's counsel. It was also agreed that the terms and provisions of the consent order should be in due course incorporated in the judgment Nisi and ultimately in the final judgment. A judgment Nisi embodying substantially the terms of the consent order followed on January 17, 1956.
The defendant criticized the composition of the judgment Nisi, but his motion to amend it was denied. With that ruling we are not at present concerned. Pursuant to a notice of a somewhat kindred purport dated March 9, 1956, counsel for the defendant requested a vacation of the judgment Nisi principally for the reason that neither he, the defendant, nor his attorney received any notice of the trial of the cause, and requested the direction of a retrial of the action on the merits, at which the defendant would be afforded an opportunity to resist the plaintiff's complaint in its entirety.
In consequence of the last mentioned motion an order was granted nullifying the judgment Nisi and permitting the defendant 'to be heard on the issues of custody and maintenance of the infant child of the marriage and on alimony, counsel fees and costs.' April 9, 1956 was designated for the trial. The order, however, embraced the following concession: 'If the said defendant desires to proceed in any other manner he shall make application to this Court on or before April 6, 1956 at 10 A.M.'
It was on April 9, 1956 that the defendant again appeared and communicated Pro se to the court his desire to contest all of the elements of the plaintiff's alleged cause of action. His request was gratified, his initial answer was reinstated, and June 12, 1956 was appointed the date for the trial.
The following quotations from the memorandum of the trial judge are descriptive of the occurrences on June 12, 1956:
'Upon the matter being called this morning for trial, Miss Forgotson presented the Court while in session with a notice of appeal from the order signed this morning at 9:45 with a letter stating that she appeals from an order entered in the matter on June 8th, 1956. * * *
Consequentially counsel for the defendant gave notice to the plaintiff of a motion returnable on June 22, 1956 for an involuntary dismissal of the action and for other relief respecting the custody of the child. Counsel for the plaintiff declined to appear, and on June 26, 1956 an order was entered which, Inter alia, dismissed the plaintiff's alleged cause of action With prejudice. From this order of dismissal the plaintiff has also appealed.
Consolidated for argument and determination are the plaintiff's (1) appeal from the order vacating the...
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