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Swanson v. Swanson

Decided: November 2, 1950.


On appeal from convictions of criminal contempt of Lillian Anna Swanson and John De Diminicantanio.

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 , 12 N.J. Super. 61 (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 occurs, 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 ...

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