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Fiorino v. Fiorino

Decided: April 6, 1955.

LOUISE FIORINO, PLAINTIFF,
v.
WILLIAM FIORINO, DEFENDANT



Martin J. Kole, J.J. and D.r.c.

Kole

The complaint in this cause was filed on August 2, 1954, seeking support of the two minor children of the marriage of plaintiff and defendant under N.J.S. 2 A:4-1 to 2 A:4-41. At the time of filing both plaintiff and defendant were residents of Bergen County. The circumstances occasioning the complaint were alleged to have occurred, and the matrimonial domicile was alleged to have been in Bergen County, and the proofs at the trial showed that such was the case.

Although the summons was issued on August 2, 1954, service of the summons and complaint was not effected on defendant until February 1, 1955, at which time both plaintiff and defendant were residents of Passaic County.

On February 4, 1955 defendant appeared with his then attorney. He then made no objection to the jurisdiction of the court over his person, or to the fact that he had not been served, or to the fact that the court did not have venue of the cause. At that hearing plaintiff moved to amend the complaint so as to seek, in addition, support for herself under the same statutory provisions. Defendant objected to the amendment, claiming surprise and that the court was without jurisdiction to amend since both parties were then residents of Passaic County. The court then held that it had jurisdiction to amend the complaint, since there was jurisdiction of the subject matter, and particularly since it had both jurisdiction of the subject matter and had venue over the original cause at the time of the filing of the complaint. It agreed, however, that defendant was entitled to a reasonable time to prepare to meet the amended complaint and, accordingly, adjourned the hearing until February 18, 1955. Cf. Hahn v. Hahn , 17 N.J. Super. 17 (App. Div. 1951).

On February 18, 1955, at the adjourned hearing, defendant appeared with his counsel. He again made no objection to lack of jurisdiction over his person, nor to lack of venue in the court. He contested the merits of the complaint. A full hearing was held on the merits, in which he fully participated, cross-examining plaintiff and her witnesses and presenting his full defense. After the hearing the court held that defendant was guilty of constructive desertion by reason of his extreme cruelty which justified plaintiff's leaving him. It requested defendant to recommend the amount of support to be paid for his wife; defendant's counsel, after consulting with defendant, suggested $25 per week. Since that suggestion accorded with the court's view of what the wife should receive, on the basis of the proofs adduced, the court entered an order on February 18, 1955, requiring defendant to pay $25 per week for the support of his wife, $15 per week for the support of the younger child, and $5 per week for the support of the oldest child -- or a total of $45 per week.

On February 23, 1955, through new counsel, defendant applied for the present order to vacate the order of February

18, 1955 on the sole ground of lack of jurisdiction of the subject matter and person of defendant at the time of the entry of the order, because both parties were then and at the time of service of process, residents of Passaic County.

The application is denied for the following reasons:

1. This court had jurisdiction of the subject matter when the original complaint was filed, when process was served, when the amendment to the complaint was made, and when the order of support was entered.

Jurisdiction of subject matter is determined as of the time of filing of the complaint, which institutes the proceedings and not as of the time of service of process or the time of hearing. R.R. 6:3-2. Compare R.R. 4:3-1, 6:3-1(a).

In any event, even at the time of service of process, and at all times thereafter, this court had ...


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