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Gosschalk v. Gosschalk

Decided: February 6, 1958.


Clapp, Jayne and Schettino. The opinion of the court was delivered by Schettino, J.A.D.


Appeal is from a judgment nisi in favor of plaintiff-husband against defendant-wife, based upon the statutory grounds of desertion, N.J.S. 2 A:34-2(b).

The parties were married in New York on July 24, 1947 at which time they were both Dutch nationals visiting this country. Both had previously been married and were parents of grown children. Their respective spouses had died. No child has been born of this marriage. Prior to the marriage, they executed an antenuptial property agreement in the presence of the Netherlands' Vice Consul in New York City. The period between the date of the marriage and November, 1950 was spent in numerous trips both here and abroad in conjunction with plaintiff's spice business as an importer and exporter.

In 1947 when plaintiff arrived in the United States he did so as a temporary visitor, and defendant, as plaintiff's

prospective bride, also came as a temporary visitor. After the marriage and until the end of the summer season, plaintiff and defendant stayed at a summer house in Asbury Park and, when their summer occupancy expired in September 1947, defendant returned to Europe. In June or July, 1949, they again visited the United States on a visitor's visa, staying at hotels in New York City until December 12 or 14, when they left for France and then Holland until November 1950.

It is particularly the period subsequent to November 1950, when respondent returned to this country under a "visitor's visa" which had endorsed thereon the reference to his right to a "treaty trader's" visa had there been an appropriate treaty between the United States and the Netherlands in effect, with which we concern ourselves.

Plaintiff, without defendant, next visited the United States in November 1950 on a visitor's visa for a period of three months. He obtained one extension of that visa, which extension was to expire on May 8, 1951. On May 4, 1951 he filed an application for a second extension of six months. At that time he specifically represented that he was in possession of a "return passage or ticket"; that his mailing address was 141st Street, Flushing, Long Island, New York, and that:

"I have a 3 (2) [Visitor's Visa -- formerly under 8 U.S.C.A. § 203(2); presently 8 U.S.C.A. § 1101 (a) (15) (B)] visa only because the Dutch treaty is not yet in effect."

His visa contained an endorsement:

"Mr. Eddy Gosschalk would be eligible for a 3(6) visa if the appropriate treaty between the United States and the Netherlands were in effect.

James A. Niederjohn,

American Vice-Consul"

The reference to 3(6) is to the former provision of 8 U.S.C.A. § 203(6), which now is incorporated in 8 U.S.C.A. § 1101(a)(15)(E). On the expiration of

the second extension he applied for a third extension of six months. This application was dated June 2, 1952. The third application contained the same address and statement with respect to his status.

In May or June 1951, defendant and one of her daughters came to the United States from Holland. After a short stay in New York City, they rented a summer house in Asbury Park where they remained together until August 1951. At that time defendant and her daughter returned to Holland. Plaintiff remained in Asbury Park until October 15, 1951, when he moved to 157 Edgar Street, Weehawken.

Plaintiff testified that during 1950 he decided to come to the United States inasmuch as he had large interests over here, and that it was then that he first formulated the desire to become a permanent resident of the United States. On July 17, 1950 plaintiff obtained from the United States Consul in Rotterdam a confirmation of his application for immigration to this country, containing Dutch quota numbers for himself, his wife and defendant's two children. Upon his last arrival plaintiff, under a corporate name, engaged in the importing and exporting business with offices at 79 Wall Street, New York City. The books of the company showed it had done a business of $500,000 in 1953.

In the spring of 1952 plaintiff advised defendant that he wanted to purchase a home in Asbury Park. The record indicates a down-payment of $500 by plaintiff on the purchase of a house in Asbury Park. Defendant stated in a letter in strong and unmistakable language her refusal to live with plaintiff in Asbury Park and "As far as I am concerned, buy yourself a house in Honolulu" and that she "had enough of it." Nevertheless, as a result of exchange of correspondence, defendant was finally persuaded to come to America in September 1952. After remaining for a day or two in Weehawken, plaintiff, defendant and a daughter of defendant went to Montreal, Canada, to obtain an immigration visa. In 1951 plaintiff's file had been transferred from Rotterdam to Montreal so that he would not have to

go all the way back to Rotterdam when his number was reached. Plaintiff failed to get an immigration visa and all of them returned to Weehawken.

On November 7, 1952 defendant went back to Holland. According to plaintiff, his next news about defendant was that plaintiff's assets had been seized in Holland at the suit of the defendant, and a court order, similar to our alimony pendente lite , was obtained by defendant. The amount was about $200 a month in American dollars and equivalent to about $500 in purchasing power. The Dutch court records show that plaintiff received permission to file a counterclaim on December 16, 1953, but did not do so until March 24, 1955 -- more than 15 months later. Plaintiff in the Dutch suit, defendant here, did not move her case in Holland ...

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