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Frank v. Frank

Decided: November 8, 1950.

ANNE FRANK, PLAINTIFF-APPELLANT,
v.
JOSEPH FRANK, DEFENDANT-RESPONDENT



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.

Bigelow

The complaint of the appellant wife against her husband, the respondent, embraces three causes of action. The first for separate maintenance; the second for arrearages of alimony due under an interlocutory order of one of the circuit courts of Florida; and the third for money loaned. The Chancery Division gave judgment against her on the first two causes and awarded her $1,200 on the third, in which she claimed $4,000. We will treat the three causes in order.

In September, 1947, appellant and her husband drove from New Jersey to Fort Lauderdale, Florida, where respondent

had just purchased a tavern, the Six and Six Bar. Upon arrival at Fort Lauderdale, they rented an apartment but could not have immediate possession and meanwhile they took a room at the Boulevard Hotel. On November 12th, respondent moved to the apartment that they had rented, while appellant remained at the hotel, although respondent asked her to go with him. She asserts that he was guilty of a constructive desertion. Since then the parties have not lived together and respondent has not supported his wife.

The happenings during the two months in Florida preceding the separation, may be gathered from appellant's testimony: Before November 2nd "we had little arguments that didn't amount to anything." The evening of that day, Frank became drunk and decided to "leave the women home and go out stag with Mr. Muller." "We had an argument and he called me names" -- vile ones. Frank came home about two or three o'clock in the morning and the name-calling was resumed. Muller had come with him but remained downstairs. So appellant got out of bed, put on a "house coat" and went down to chat with him for a while. In the morning, Frank began quarreling again. "I wanted to call the police and he took the receiver out of my hand and hit me on the chest." Later in the day, appellant consulted a lawyer and instructed him to begin a proceeding for separate maintenance. But it was not until a week later, November 10th, that she swore to the complaint. The papers were served on Frank just before he moved from the hotel to the apartment. After the events of the night of November 2nd, "We weren't on speaking terms." "Did you have quarrels during that period?" "No." They continued to occupy the same room, but according to appellant they forebore sexual intercourse. More remote from the actual separation were the other incidents related by appellant: March 17, 1947; 1944, between Christmas and New Year; and 1941.

The husband has the right, within reasonable limits, to choose the family place of abode and it is his wife's duty to live with him there. Rich v. Rich , 109 N.J. Eq. 216

(E. & A. 1931). Appellant does not assert that the apartment to which her husband moved on November 12th was in any way unsuitable. She refused to accompany him because she was unwilling to continue living with him anywhere. The separation was her act. To put the onus of the separation on respondent, she must prove misconduct by him that would constitute a ground of divorce. Danzi v. Danzi , 142 N.J. Eq. 662 (E. & A. 1948). She specifies extreme cruelty. To succeed in her action, she must show that his conduct was such that her health was endangered or her life rendered so extremely wretched as to incapacitate her to discharge the duties of a wife, or that her husband's conduct, if continued, would bring about these results. Fallon v. Fallon , 111 N.J. Eq. 512 (E. & A. 1932). We agree with the Advisory Master that appellant fails to meet this test.

The respondent, through the years, was frequently drunk, generally rude to his wife; sometimes called such names as whore; on three or four occasions struck her. At times, but not frequently, he neglected or refused to provide her with sufficient money to run the household. But the appellant must have known pretty well what to expect when she married him, for she was then employed in his tavern. Giving full consideration to all the evidence, we do not find respondent guilty of extreme cruelty, or liable for the separate maintenance of appellant.

We turn to her second cause of action. On November 14th, the Circuit Court made an interlocutory order in appellant's suit for support, that defendant pay plaintiff "for her temporary alimony the sum of $75 per week beginning November 15, 1947, until the further order of this court." On December 2, 1948, another order in the cause was signed, adjudging respondent in contempt. These are the orders on which appellant relies.

Congress, implementing the full faith and credit clause of our Constitution, Art. 4, sec. 1, has enacted that the "judicial proceedings" of any court of a state shall have "the same full ...


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