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Clemens v. Clemens

Decided: June 11, 1952.


McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D.


This appeal challenges the award of the custody of the infant child of the marriage to the mother.

Regina Caroline Clemens filed a bill for separate maintenance against her husband, Fred James Clemens, in the former Court of Chancery on July 21, 1948, praying support and maintenance for herself and their child Carol, then six years old. Defendant's answer denied abandonment of his wife or refusal and neglect to maintain and provide for her and Carol, and stated that he had been paying $10 a week for the support of the child pursuant to an order of the Passaic County Criminal Judicial District Court. Defendant counterclaimed for custody of Carol.

On August 4, 1950, the husband instituted an action for divorce on the ground of simple desertion, alleged to have commenced January 7, 1948. He demanded judgment dissolving the marriage and awarding him custody of the child. The wife filed no answer.

The two actions were consolidated by order advised September 26, 1950. Hearings were held April 4, May 17 and

May 21, 1951, and resulted in the entry of a single judgment exhibiting a double aspect: (1) a judgment dismissing the complaint and counterclaim in the wife's separate maintenance action and allowing her a counsel fee of $300, and (2) a judgment nisi in the husband's divorce action, awarding custody of the child to the mother, with such reasonable visitation and partial custody in the father as might be agreed to by the parties.

The husband appeals from the award of custody and the allowance of counsel fee. The latter issue was abandoned at the argument.

The appeal invites a review of the facts presented in the course of the extended hearing before the advisory master. This court may make new or amended findings of fact, but the rule enjoins that in so doing due regard be given to the opportunity of the advisory master to judge of the credibility of the witnesses. Rules 1:2-20, 4:2-6.

The conclusions of the advisory master summarize the testimony in considerable detail but give no clue to the reasons which led him to decide that "the welfare and happiness of the child of the marriage, a girl, aged nine years, can best be served by retaining custody in the mother subject to defendant's visitation rights and partial custody as may be agreed to by the parties." The advisory master does not comment upon the credibility of the several witnesses or indicate the weight which he assigned to their respective testimonies. Nor does he crystallize the evidence into findings which would provide guidance in the determination of this appeal. In the circumstances, we have concluded that it is essential that we review the evidence and develop our own independent findings. Lehmann v. Lehmann , 7 N.J. Super. 232 (App. Div. 1950).

Mrs. Clemens left her husband on January 7, 1948, taking her child with her to Elizabeth, N.J., where she lived with a sister for some six months. In the summer of 1948 she was obliged to move to quarters of her own -- second floor rooms in a run-down, ramshackle, vermin-infested tenement on

Dickinson Street, Elizabeth. The rooms were poorly lit and badly in need of painting. There was a table and one chair; crates and boxes served as the other furniture. The child slept on a folding cot, and the mother and her sister slept on a mattress on the floor. Some months later all three moved into their present quarters, a second-floor apartment on Elizabeth Avenue, a business street in Elizabeth. Mrs. Clemens furnished this apartment in modestly comfortable fashion with new and second-hand furniture. The child sleeps in a windowless room which was described as a closet-like space. In the rear of the premises is a small parking lot which Carol sometimes uses as a playground.

It is appropriate to describe briefly the Clemens home where Carol and her mother once lived. It is a well-furnished 12-year-old house at Pinecliff Lake, West Milford, N.J., purchased by the father in 1946. There are seven rooms and two sun-porches, a front lawn and a back yard planted with flowers and shrubbery. The back yard leads directly onto Pinecliff Lake which the child used for swimming, boating and fishing. There is a playground three or four doors away, with a supervised public beach. The child had her own room in this home, which she uses when she visits her father on the weekend. The room has two windows, one leading to a back porch. There is bus service to a parochial school two miles away, and there is a Catholic church a mile away.

Mrs. Clemens and her sister both work during the day. After being given breakfast by her mother, Carol and her twin cousins, who live in the apartment above, go to parochial school. They sometimes take her to lunch and sometimes she buys her food at the school cafeteria. After school Carol attends a playground sewing school on Tuesdays and a dancing school at the same place on Wednesdays. Sometimes she goes shopping with her mother on Thursdays. On Mondays and Fridays she stays home ...

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