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Roskein v. Roskein

Decided: March 27, 1953.


Goldmann, J.s.c.


Plaintiff seeks modification of the separation and property settlement agreement entered into between the parties on June 8, 1948, both as regards alimony and support for herself and for the infant children of the marriage. She also demands judgment for certain claimed arrearages.

The parties were married in Newark on December 28, 1928. Three children were born to them: Joan, now of age and married; Patricia Anne, now 18, and Peter Michael, now 13. Patricia and Peter reside with plaintiff, but Patricia is presently attending college.

Differences apparently irreconcilable arose between the parties. In 1946 plaintiff engaged eminent counsel in Newark to negotiate a separation and property settlement agreement with her husband. The negotiations continued for more than two years, during which time many conferences were held and a number of drafts drawn. Plaintiff changed attorneys in the middle of these negotiations, eventually returning to her original attorney; defendant, himself an attorney specializing in workmen's compensation law, was represented by counsel of his own choosing. Finally, on June 8, 1948 the agreement here under attack was executed. Its preamble carried the usual statements that the parties

fully understood the terms and conditions of the agreement and "believe it to be fair, just, adequate and reasonable as to each of them," and accordingly they "freely and voluntarily accept such conditions and provisions." In summary, the agreement provided:

1. The parties were to convey the marital residence in South Orange to a company about to be organized.

2. The husband was to provide a five- or six-room apartment in the Oranges or Maplewood at his own cost and expense, as a suitable residence for his wife and children; until this was done they were to occupy the marital residence and the husband was to pay all carrying charges thereon.

3. The husband was to convey to the wife all his right, title and interest to the furniture, silverware and other household effects in the South Orange home, as well as to any jewelry, clothing or personal effects belonging to or used by her. He also gave her a Cadillac automobile.

4. The husband was to pay the wife $55 a week for her support and maintenance and $25 a week for the support and maintenance of each of the three children. If any child ceased to reside with the mother for more than a week at a time, payments for its support and maintenance were to be suspended until the child returned to live with the mother.

5. The husband agreed to pay the wife $350 annually as a clothing allowance and to furnish adequate wearing apparel for the children at his own expense.

6. The husband was to pay all tuition fees and expenses in any college or for the higher education of any of the children; also all fees and other expenses required to send any child to camp or for summer vacations. However, he alone was to determine whether any child was to attend college or camp, or be entitled to vacations at his expense.

7. The husband agreed to pay all medical and dental bills for the wife and children, but she was not to incur any such bills without first obtaining his approval, except in cases of emergency.

8. Support and maintenance for the wife, and her annual clothing allowance, were to cease and be discontinued on June 8, 1953, at the option of the husband. Such payments were to stop absolutely upon her remarriage. However, his obligations toward the children were to continue beyond the five-year period, or the remarriage.

9. The husband was to deliver to the wife all savings bank books, bank certificates and government certificates in which she was named as having an interest. He also agreed to deliver a $5000 20-year endowment policy on which he was to continue to pay the premiums; he agreed to pay off a $3000 loan made against that policy.

10. The wife agreed that she would not, under any circumstances, purchase or contract for the purchase of any property whatsoever

on the credit of her husband, and would indemnify and hold him harmless from any liability arising from such purchase.

11. The wife was to pay off obligations listed in an attached schedule which she had incurred without her husband's consent. He, in turn, agreed to advance $1250 to her attorney for costs and counsel fees connected with the agreement, including living expenses to August 30, 1948. He also undertook to pay $2000 in escrow, to be paid over to the wife when all of the obligations were paid, or to unpaid creditors.

The agreement expressly provided that it might be offered in evidence by either party in any matrimonial action at any time pending between them, and, subject to the approval of the court, was to be incorporated in any decree or judgment of divorce or separation entered in any such action, the obligations and covenants of the agreement to survive any such decree or judgment.

Immediately after executing the agreement plaintiff left by train for Reno, Nevada. She arrived there June 12, 1948 and promptly engaged counsel. He filed her complaint for divorce on the ground of extreme cruelty, "mental in its nature," on July 26, just two days after the expiration of the required six-week residence period. An answer was filed the same day by defendant's Reno counsel, acting under a power of attorney executed by the defendant in Newark on June 8, 1948. The answer challenged plaintiff's claim of bona fide residence in Nevada, charging that her residence was simulated and acquired solely for the purpose of establishing jurisdiction, and that she was perpetrating a fraud upon the court. Plaintiff replied immediately.

The clerk's stamp shows that all pleadings were filed on July 26, 1948 at 11:41 A.M. At 2:34 P.M. that afternoon the court filed its findings of fact and conclusions of law, as well as the divorce decree itself. One minute later the clerk filed the "Notice of Decision" bearing defendant's attorney's endorsement acknowledging service of the notice and waiving service of the findings of fact as well as of the expiration of the statutory time before the signing of such findings. The certified copy of the judgment roll is a silent but eloquent witness to the mechanical nature of the entire proceedings.

Plaintiff's return trip ticket to Newark, New Jersey, was in her pocketbook at the very moment she was testifying in the Reno court. She took the first train back that evening, and this in the face of her sworn testimony only a few hours before that she had come to Nevada to make a "permanent home for an indefinite period of time" -- a representation again solemnly made in the course of the rather perfunctory cross-examination. She now states that she changed her mind immediately after the decree was allowed -- "that is my privilege" -- and maintains that what she said in the Nevada court was the truth. Plaintiff's testimony in this regard is ...

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