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Ippolito v. Ippolito

Decided: February 6, 1950.

FREDA IPPOLITO, PLAINTIFF-RESPONDENT,
v.
FRANK IPPOLITO, THOMAS IPPOLITO ET AL., DEFENDANTS-APPELLANTS



On appeal from Superior Court, Chancery Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Burling, J.

Burling

This is an appeal from an order of the Superior Court, Chancery Division, in a matrimonial matter which granted, at the suit of the wife, injunctive relief against the prosecution by the husband of a divorce action in the State of Nevada and permitted seizure of the husband's property located in this State. The case has been certified on our own motion.

The plaintiff, Freda Ippolito, and the defendant, Frank Ippolito, were married in Paterson, New Jersey, on March 29, 1933, where they continued to live together until October, 1948, when the defendant husband moved to his father's home in the same city. The plaintiff continued to live at the marital residence in Paterson with the two children of the marriage. The defendant husband owned and operated a milk route in Paterson and West Paterson, New Jersey. In June, 1949, the husband left New Jersey and went to Nevada, where,

on August 12, 1949, he instituted an action for divorce on the grounds of extreme cruelty. The summons and complaint were served on the plaintiff on August 15, 1949, in Paterson, by the Sheriff of Passaic County, New Jersey, apparently under some provision in the Nevada law for service upon non-resident defendants, although nothing appears in the briefs or appendix disclosing such a provision. On August 25, 1949, the plaintiff filed a complaint with the Superior Court of New Jersey, Chancery Division, seeking an order restraining the prosecution of the Nevada divorce action and the sequestration of the defendant husband's property located in this State, including a bond and mortgage executed by the defendants, Philip Venticinque and Mary Frances Venticinque to the said defendant husband which mortgage had been assigned by the latter to his father, the defendant Thomas Ippolito, on December 31, 1948.

The plaintiff charged that the residence of her husband in Nevada was not bona fide, that his divorce action in Nevada was an effort to perpetrate a fraud on the Nevada Court and the plaintiff; that he was still operating, through his agent, the milk route in Paterson and West Paterson, New Jersey; that two motor vehicles owned by the defendant husband were being used in the operation of said milk route and that the above mortgage assignment was fraudulent. The complaint was verified by the plaintiff's affidavit and in part, by her brother's affidavit. A subsequently filed affidavit of the petitioner stated that her husband had left for Reno, Nevada, on June 26, 1949, in company with an alleged paramour and that both the husband and the alleged paramour had retained the same attorney for the institution of divorce proceedings in Nevada and from which affidavit it appears that the Nevada proceedings were instituted by the defendant husband within 43 days from the date of his departure from New Jersey.

Pursuant to the verified complaint an order was made on August 25, 1949, restraining the defendant husband from proceeding with his divorce action in Nevada, or elsewhere than in New Jersey, awarding a writ of sequestration against

the defendant husband's property in this State and restraining the defendant, Thomas Ippolito, from assigning the bond and mortgage, assigned by the defendant husband to him on December 31, 1948, and from collecting principal or interest thereon until the further order of the court. The mortgagors were restrained from paying any part of the mortgage principal or interest thereon to the defendants, Frank Ippolito and Thomas Ippolito. A writ of sequestration issued and was executed pursuant to the order. The defendant, Thomas Ippolito, moved for the dissolution of the restraints issued against him and for a vacation of the writ of sequestration. The motion was denied on September 23, 1949. A hearing on the order to show cause of August 25, 1949, was held on September 30, 1949. The defendant, Frank Ippolito, having entered a general appearance by his attorney, had filed an affidavit to the effect that his residence in Nevada was intended to be permanent, that he was operating a luncheonette in that state, that he had been paying the sum of $41 each week for the support of his wife and children and that he intended to continue such payments. The defendant, Thomas Ippolito, had filed an affidavit to the effect that the assignment of the mortgage in question had been made for a valuable consideration. On October 13, 1949, the Chancery Division having considered the affidavits and the arguments of counsel, ordered that the restraints previously ordered against all the defendants be continued until the further order of the Court and denied a renewed motion to dissolve the restraints against the defendant, Thomas Ippolito.

The defendants, Frank Ippolito and Thomas Ippolito, have jointly appealed from the last mentioned order.

The first point advanced by the defendants relates to the propriety of the ex parte preliminary restraints. Rule 3:65-2 provides, in part, that "No temporary restraining order shall be granted without notice to the adverse party or his consent unless it appears from specific facts shown by affidavit or by the verified complaint that immediate, substantial and irreparable injury, ...


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