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Lathrop v. Lathrop

Decided: June 24, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


Defendant appeals from a Chancery Division order committing her to 30 days in the county jail for violating the terms of a previous order whereby she had been found guilty of contempt of court and sentenced to jail for a like term, sentence being suspended and defendant placed on two years' probation. We assigned counsel to prosecute her appeal after she had filed a brief and appendix pro se. The Attorney General has, at the request of the court, undertaken to support the order under attack.

This appeal is but one more facet of an extended and bitterly contested matrimonial action which began in September 1953 when plaintiff filed a complaint for divorce on the ground of extreme cruelty. Defendant counterclaimed for dissolution of the marriage on the same ground. Judgment nisi went in plaintiff's favor on March 23, 1956. It awarded custody of the minor children of the marriage to defendant mother and provided for right of visitation in the father. The judgment nisi was recently affirmed by this court on attack upon both its divorce and the visitation provisions.

On June 13, 1956 plaintiff filed a notice of motion to hold defendant in contempt for failure to allow him his visitation

rights. There was a hearing on June 23 and 29, 1956, but it was continued on defendant's representation that she would obey the judgment nisi. The matter came on again in early September and was then scheduled for October 4. On that day there was a postponement to October 11, 1956, at which time County Court Judge Bennett, specially assigned by the Chief Justice temporarily to hear matrimonial matters in the vicinage, found defendant guilty of civil contempt for will-fully and without just cause failing to comply with the custody and visitation privileges of the judgment nisi. Sentence was postponed until the Monmouth County Probation Office could complete its pre-sentence investigation. (The body of the order signed by the judge carries the typed date of October 4, 1956. It had been prepared by plaintiff's attorney, apparently in the expectation that it would be signed on that day. When the contempt hearing was continued to October 11, the date by inadvertence remained unchanged.)

The parties and their counsel again appeared in court on January 11, 1957. What happened then is important to our determination and should be detailed. In the course of the colloquy preceding sentence Judge Bennett expressed the view that in the circumstances it would be best to impose "a suspended sentence for contempt of court, execution suspended, probation imposed, not so much for the purpose of weekly supervision, but it would give the court the power summarily to revoke probation and remove the suspension of sentence if there be a future defiance of the court order. * * * I think this defendant would realize the effect of any defiance of the court order. Summarily she could be brought in court and put in jail." When defendant's counsel inquired whether there was anything his client had to do to comply with probation, the judge stated that he would get in touch with the Chief Probation Officer of Monmouth County and "explain what I want." He then formally announced:

"I will give a thirty-day Monmouth County jail term for the contempt of Court, execution of which is vacated, and she will be placed on this modified probation for a period of two years. I will

get in touch with the Probation Officer and tell him what I want, and I want it understood between counsel and all concerned that complete, strict compliance is expected.

If we don't have it, just inform me informally, and summarily it can be brought to the attention of the Court and I will impose the last final rite. I hope it won't be necessary, believe me."

When defendant's attorney asked whether weekly reporting would be required as part of the probation, the judge said it would not, adding that if he got notice of a violation of the order, either from the Probation Department or counsel, the matter could be brought before him in a routine way. No order setting out the suspended sentence and the two-year probation imposed, or the terms of such probation, has ever been entered.

Plaintiff having complained again that his visitation rights were being disregarded, Judge Bennett wrote the following letter to defendant on July 30, 1957:

"Dear Mrs. Lathrop:

Reports have come to my attention that you have not complied with the order of the court respecting custody and visitation of the children which may be true or untrue. In view of the fact that I resolved prior claims to this effect some months ago in Freehold, N.J., and concluded that you were in contempt of court, it is my feeling that the present reports, if true, seriously reflect upon the powers of the court. I am, therefore, communicating with the Probation Department of Monmouth County with the request that these reports be investigated and this may eventuate in a formal hearing, on notice, before me respecting my determination of contempt.

Very truly yours,

s/ Clifton C. Bennett"

Upon receipt of a copy of this letter by the Monmouth County Probation Office, Mrs. Zeller, one of the probation officers, was assigned to interview defendant.

Mrs. Zeller called on defendant at her home on August 13, 1957, introduced herself, and explained that she had come to talk about visitation for the children. Defendant refused to discuss any aspect of visitation on the grounds that she had an appeal pending (the reference was to ...

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