Jayne, Francis and Clapp. The opinion of the court was delivered by Jayne, S.j.a.d.
This appeal conveys to us for appellate review the legal and factual propriety of the judgment nisi which in the conventional form dissolves the marriage of the parties in consequence of the willful, continued and obstinate desertion committed by the plaintiff as alleged in the amended counterclaim of the defendant, and prescribes the custody of the infant daughter born of the marriage.
The unreported memorandum of conclusions composed by Judge Goldmann in the Chancery Division is communicative of the nature of the action, the issues projected by the pleadings, and of his findings of facts. It is literally informational and expedient to reproduce it:
"Plaintiff wife instituted this action for separate maintenance and custody, alleging that defendant abandoned her on April 30, 1950, ever since which time he has refused and neglected to maintain and provide for her and Ellen, the child of the marriage. Defendant denies the
abandonment and counterclaims for custody of the child, alleging that it was plaintiff who abandoned and deserted him and the child on April 30, 1950, without justification, and continues to do so. He charges that plaintiff is morally and mentally unfit, and financially unable, to be entrusted with the care, custody, education and welfare to the daughter.
At the beginning of the hearing Advisory Master Hillenbach permitted both the complaint and the counterclaim to be amended so that each party sought divorce on the ground of desertion, and custody of the child. The amended pleadings have not been filed. For completeness of the record this should be done at once.
The parties first met during the summer of 1940 when they were vacationing at the Nature Friends of America Camp at Midvale, N.J. Defendant claims this camp was operated under Communist auspices. The parties went through a civil marriage ceremony in New York City on November 16, 1940. After living in Newark for a year they moved to 204 Berkeley Avenue, Bloomfield, where defendant still resides and where plaintiff lived until she entered Essex County Overbrook Hospital in January 1950, under circumstances about to be detailed.
The court has had the benefit of the transcript of testimony taken before Advisory Master Hillenbach, as well as the continuation of testimony taken on February 26, 1953. It also has the report of investigation made by the Essex County Probation Office pursuant to Rule 3:87-12(c). This report was made available to both counsel who were given the opportunity to cross-examine the investigator, Mary F. Scanlon, who made the report. Also before the court is the file of the Essex County Overbrook Hospital admitted in evidence.
Plaintiff and her elder brother Samuel came to America in 1921 to live with relatives in Connecticut, leaving their orthodox Jewish parents behind in Lithuania. Later plaintiff went to Boston to live with her brother Samuel, now married. She became a citizen in 1929 and moved to New York about 1936 after being twice arrested and jailed for anti-Hitler demonstrations in 1933. She has had practically no connection with her religion.
Defendant was brought up in the Catholic religion, but failed to adhere to it from the 1920's down to about five years ago, when he resumed church attendance. He claims to have been regular in his Catholic duties for the past year or two.
Defendant frankly admits that he was a member of the Communist Party at the close of the 1930's and sought and obtained admission as a member when he married plaintiff. He charges that plaintiff continues to be a member of the party. Plaintiff testified that she has not been a member of the party for the past ten years. A 1946 membership card issued by the Communist Party of the U.S.A. belies that statement.
Ellen, daughter of the marriage, was born July 22, 1942. A few years later the mother began to suffer manic-depressive symptoms. As her condition worsened, she became less and less able to care for herself, her home and the child. The Bloomfield apartment was
in disorder and dirty. The child was unkempt and badly cared for, her play habits with children of her age were not normal; the child was overwrought and her life lacked discipline and order.
The father was, by his own admission, a heavy drinker for many years, although he somehow was able to attend to his shipping clerk and warehouseman duties at the local Chevrolet plant. His work record there over the past 18 years has been good.
In August 1947 plaintiff voluntarily committed herself as a patient to Essex County Overbrook Hospital where she underwent shock therapy treatments. She left the institution in October 1947. Ellen, in the ...