Zimmerman v. Zimmerman

• Decision Date: 02 October 1950
• Docket Number: No. A--461,A--461
• Citation: 12 N.J.Super. 61,79 A.2d 59
• Parties: ZIMMERMAN v. ZIMMERMAN.
• Court: New Jersey Superior Court — Appellate Division

Page 61

12 N.J.Super. 61

79 A.2d 59

ZIMMERMAN v. ZIMMERMAN.

No. A--461.

Superior Court of New Jersey

Appellate Division.

Argued Aug. 21, 1950.

Decided Oct. 2, 1950.

Warren Dixon, Jr., Hackensack, argued the cause for the appellant.

James A. Major, Hackensack, argued the cause for the State.

Before Judges JACOBS, BIGELOW and Wm. J. BRENNAN, Jr.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The appellant, an attorney and counsellor at law, was summarily convicted of a contempt which in substance amounted to subordnation of perjury in a divorce suit. Concededly there was perjury; but did Elsie Zimmerman, the petitioner, herself concoct it, or did her solicitor, the appellant?

In August 1948, appellant filed the petition for divorce, alleging desertion. The action, which was not contested, came on for hearing October 31, 1949, when Mrs. Zimmerman and a witness named Merrick testified. The following day, another witness, Thomas Rady, testified. An order of dismissal was entered November 4. The petition for divorce gave Mrs. Zimmerman's address as 40 Harding Road, in the Borough of Glen Rock, Bergen County. It alleged that she had been a bona fide resident of New Jersey when the cause of action arose and for more than two years next preceding the commencement of the action. She testified that she had lived at the Colgate place on Blue Mill Road, Morristown, until June 1948, when she moved to Glen Rock. Merrick testified that he resided on Blue Mill Road at the time of the hearing and had lived there since 1941, except for two years when he was in military service; that Mrs. Zimmerman was his nearest neighbor when she lived there. Actually, Mrs. Zimmerman dwelt at Morristown only until 1943 when she moved to Long Island, where she has lived ever since. She never lived at Glen Rock. Merrick has never lived in New Jersey; he had been acquainted with Mrs. Zimmerman only since she moved to Long Island. Such was the fraudulent attempt to bring Mrs. Zimmerman's suit within the jurisdiction of New Jersey.

In March 1950, Mrs. Zimmerman, Merrick and Rady were accused of contempt of court consisting of perjury. The first two pleaded guilty, while Rady was tried and convicted. Mrs. Zimmerman then accused her solicitor, the appellant, of inventing the falsehoods which she and Merrick uttered, and the proceeding against appellant was thereupon instituted.

The contempt charge was tried before an Advisory Master, the same one who heard the divorce case, and thus is presented the first ground urged for reversal, namely, that the Advisory Master was without jurisdiction.

As Vice-Chancellor Berry pointed out in the Caruba case, 139 N.J.Eq. 404, at page 421, 51 A.2d 446, 457 (Ch.1947); affirmed 140 N.J.Eq. 563, 55 A.2d 289 (E. & A. 1947), a Master, acting within the scope of the reference to him, is for all practical purposes the court itself. He added that the Special Master in the suit then under discussion, 'could not, of course, have summarily committed the defendant for his confessed perjury, but only because such action was outside the reference which limited his power and there was no general reference under which he could act.' There was, however, a general reference to Advisory Masters of applications to punish for contempt for disobedience of orders in matrimonial causes and to punish for criminal contempt. Chancery Rule 128(e). By virtue of this rule, which was first promulgated in 1933 and broadened in 1936, Advisory Masters heard criminal contempt charges which grew out of matrimonial causes and advised the Chancellor what order or decree should be made.

The Constitution adopted by the people in 1947, directed that the Advisory Masters who had been appointed to hear matrimonial proceedings, shall 'continue so to do as Advisory Masters to the Chancery Division of the Superior Court, unless otherwise provided by law.' Art. XI, § 4, par. 6. Following this constitutional provision, our present Rule 3:87--4 requires matrimonial actions to be heard by a Judge of the Chancery Division or by an Advisory Master assigned thereto. Counsel for appellant points out that the Constitution and the Rule direct only that the Advisory Masters hear matrimonial matters and are silent on the subject of contempt. Of course, a criminal contempt prosecution is separte from the cause in which the contempt is committed. The parties may be--and in the present instance are--different. A criminal contempt is a public wrong; it is a misdemeanor. Staley v. South Jersey Realty Co., 83 N.J.Eq. 300, 90 A. 1042, L.R.A.1917B, 113 (Sup.1914). It may be prosecuted on indictment like other crimes. In re Kerrigan 33 N.J.L. 344 (Sup.1869). When prosecuted in a summary manner in the court against which the contumacious conduct was directed, it was formerly considered that the matter must be entitled as a separate cause. Passaic Athenia Bus Co. v. Consolidated Bus Lines, 100 N.J.Eq. 185, 135 A. 284 (Ch.1926); Dorrian v. Davis, 105 N.J.Eq. 147, 147 A. 338 (Ch.1929). But the original cause and the criminal one are generally intertwined. Indeed, the contemptuous acts may be such that they may be dealt with either as a criminal or a civil contempt. Beatty v. Wunschel, 122 N.J.Eq. 286, 193 a. 799 (Ch.1937). Our present rules provide that a contempt, whether criminal or civil, 'shall be prosecuted in the action in which it occurs'. Rule 3:80--2. In our opinion, the prosecution for contempt is a part of the matrimonial cause in which the contempt is committed, within the meaning of Art. XI, § 4, par. 6 of the Constitution and Rule 3:87--4, although in most other aspects the two are independent actions. The Advisory Master to whom is assigned a matrimonial cause, has the same jurisdiction and authority in contempt matters that Advisory Masters were accustomed to exercise prior to September 15, 1948, that is, he may conduct the trial and advise the order or judgment that ought to be made in a criminal contempt which occurs in the matrimonial action, except as prohibited by paragraphs (d) and (e) of Rule 3:80--2. And the order or judgment so advised becomes the order of the Superior Court when signed by a Judge of the Court. That was the procedure followed in the present instance.

It is next urged that there was error in the admission of evidence. Mrs. Zimmerman and Merrick each made a statement under oath, or affidavit, in the county jail on March 15, 1950. The order to show cause which initiated the contempt proceeding was supported by these affidavits and a copy of them was served on appellant with the show cause order. When the contempt was tried, the Zimmerman woman and Merrick testified for the State. In the course of cross-examination, appellant's counsel asked the prosecutor for the original sworn statements, received the documents, and used them on the cross-examination. At the conclusion of the examination of these witnesses, the State offered the statements in evidence and they were received over the objection of appellant.

The State seeks to sustain the receipt of the statements on the ground that they were produced upon appellant's demand, and that in the course of the cross-examination, parts of the statements were put before the court for the purpose of contradicting these witnesses.

It has been considered to be the rule that if a party call on his adversary for the production of a paper and examine it, he cannot object to its being put in evidence if it be in any way material to the issues. 'The reason for this rule is that it would give an unconscionable advantage to a party to enable him to pry into the affiars of his adversary without, at the same time, subjecting him to the risk of making whatever he inspects evidence for both parties.' Ellison v. Cruser, 40 N.J.L. 444 (Sup.1878); Decker v. Geo. W. Smith & Co., 88 N.J.L. 630, 96 A. 915 (E. & A.1915). For cases from other states, see 151 A.L.R., Annotation, at 1006. For vigorous criticism of the rule, see Wigmore on Evidence, § 2125. The spirit of our new court rules relating to discovery seems to run counter to the old practice outlined in the cases we have cited, so much so that we would hesitate to say whether or not those cases state what is still the law. The affidavits or statements in question which were in question and answer form were, as we have mentioned, the foundation for the proceeding against the appellant. They were papers in the case in the same sense as are the affidavits which form the basis for an order for an interlocutory injunction. A copy had been served on appellant at the outset. All he called for was the signed originals. He did not pry into the State's case. The rule on which counsel for the State first relies is not applicable.

It is also a rule of the law evidence that when an oral or written statement of a witness is used on cross-examination for the purpose of contradicting the witness, and in this manner parts of the statement are put in evidence, then the remainder of the statement which concerns the same subject and which is explanatory of the part used in the cross-examination, becomes evidential. Wigmore-Evidence, § 2113. The rule which has been followed in New Jersey is probably broader than indicated above, so that all of the statement upon the same subject is admissible, whether or not it is explanatory of the part used in the cross-examination. State v. Cohen, 97 N.J.L. 5, 116 A. 724 (Sup.1921). And when the statement is written, practical considerations generally permit the whole document to be put in. Iverson v. Prudential Ins. Co., 126 N.J.L. 280, 19 A.2d 214 (E. & A.1940). The trial court necessarily has considerable leeway or discretion in a matter of this sort. In the present instance, appellant did not suggest that any...