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Carlsen v. Carlsen

Decided: March 6, 1958.

FRANCES J. CARLSEN, PLAINTIFF-RESPONDENT,
v.
ARNOLD G. CARLSEN, DEFENDANT-APPELLANT



Price, Haneman and Schettino. The opinion of the court was delivered by Schettino, J.A.D.

Schettino

Appeal has been taken by defendant-husband from the portion of a judgment in favor of his wife which by its terms ordered defendant to convey the marital residence to plaintiff based upon defendant's oral promise to convey the family homestead property in return for a three-month period during which time plaintiff would not prosecute her divorce action and an attempt would be made to save the marriage and rectify the discord between the parties.

The facts surrounding the oral agreement are these. On June 26, 1956, from about 12 midnight to 1 A.M., defendant importuned plaintiff-wife to stop her suit for divorce scheduled to go to trial that morning. At that hour they reached no agreement. However, next morning in the corridors of the court house they agreed on a plan which subsequently was recited in open court as follows:

" Mr. Back: Mr. Christie representing Mr. Carlsen, the defendant and [ILLEGibLE WORD] representing the plaintiff, Mrs. Carlsen, have together with our parties done as much as possible to see if we can't save the marriage and the family.

Mr. Carlsen has stated that he was to convey to Mrs. Carlsen the real property which is located in Oradell on the corner of --

Mr. Carlsen: Third Street. Oradell Avenue and Third Street.

Mr. Back: Oradell Avenue and Third Street which is the marital res to Mrs. Carlsen and will also turn over one of the motor vehicles which I believe is a 1954 Pontiac to her and in her own name. In addition to that to pay all expenses in connection with, or, and maintenance of the home as heretofore and will give to her a sum sufficient, as will be agreeable to both parties, I know, and the matter will go off the calendar indefinitely, as your Honor indicated, and we can set it down for some future date in the fall.

The Court: Whenever you are ready let us know and if the matter works out satisfactorily then you may send in a Judgment of Dismissal.

Mr. Back: I might say that Mr. Christie and I have agreed upon a period of three months and at the end of that time we should know what can be done for these people. Is that fully understood, Mrs. Carlsen?

Mrs. Carlsen: Yes.

Mr. Back: And Mr. Carlsen?

Mr. Carlsen: Yes.

Mr. Back: And Mr. Christie?

Mr. Christie: Yes."

Plaintiff's action for a divorce was in fact forestalled for a period of more than six months in reliance upon the agreement and there is evidence of some attempts to reconcile their differences. No successful reconciliation took place.

Subsequent to this abortive attempt, plaintiff filed an amended complaint. In the first count she sued for divorce; in the second count, for a judgment to compel defendant specifically to perform his agreement to convey to plaintiff the marital home and; in the third count, for a judgment to compel defendant to transfer title to the automobile to plaintiff. Judgment was entered on all counts in favor of plaintiff. ...


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