Price, Haneman and Schettino. The opinion of the court was delivered by Haneman, J.A.D.
[51 NJSuper Page 280] Plaintiff and defendant are the divorced parents of three children. The marital relationship and familial rights and duties have been the subject of prolonged litigation (from September 1950 to date) in our trial and appellate courts. By the present appeal plaintiff-mother challenges an order of the Chancery Division by which, inter alia , that court refused to modify a prior order
of custody and continued the custody of the two minor children in defendant-father. Defendant cross-appeals from the same order, but not insofar as his custody is concerned. The pertinent issues raised on both appeals are discussed below.
Plaintiff and defendant were married on October 10, 1934. Three children were born of this marriage -- Patricia on February 6, 1936, Suzanne on November 13, 1939, and Diane on April 19, 1941. The custody of only the latter two is involved.
Defendant, a practicing physician, enlisted in the U.S. Navy and in October 1942 went into active service. He was assigned to duty at the U.S. Medical Center at Bethesda, Maryland. Thereafter he was transferred to Pensacola, Florida, and Charleston, South Carolina. His family joined him at each of these stations. Late in 1944 he received orders for service overseas. He returned to Newark with his family and re-established the home there. He and plaintiff then journeyed to San Francisco. On December 24, 1944 he reported on board the ship which was to carry him to duty in British Samoa. On December 25, 1945 defendant arrived back at Newark. He was hospitalized for a short time (six weeks) and discharged in April 1946. During all of this period of time the family was a close-knit and affectionate unit.
During defendant's overseas service plaintiff encountered some difficulty with the Office of Price Administration (O.P.A.) regarding the rental of the marital residence. Richard J. Tarrant, a married man whose wife had borne him seven children, was the Director of O.P.A. As late as August 26, 1945 plaintiff wrote a letter in endearing terms to defendant and recounted a trip to Belmont Park with Tarrant and some others. She gave as an excuse that she required his assistance in solving the O.P.A. problems and hence could not refuse an invitation. Plaintiff eventually became employed by Tarrant as his secretary and was later financed by him in the operation of a dress shop. From the date of her acquaintance with Tarrant, plaintiff's affection for defendant cooled.
For an understanding of the problems involved, a brief synopsis of the antecedent litigation, interspersed with some further factual recital, is necessary.
In September 1950 plaintiff filed suit for divorce on the ground of extreme cruelty. Immediately thereafter defendant filed a complaint for custody of the children, which action was consolidated with the action for divorce. In that same month the trial court issued an order to show cause which, inter alia , restrained plaintiff from either removing the children from the jurisdiction of the court or concealing their whereabouts. Thereafter temporary custody of the three children was given to plaintiff, without prejudice.
The trial upon plaintiff's complaint for divorce commenced in May 1951 and continued intermittently into January 1952, at which time defendant moved for leave to file a counterclaim for divorce on the grounds of plaintiff's adultery with Tarrant in December 1951. Plaintiff was permitted to abandon her action for divorce and her complaint was dismissed without prejudice. Defendant was granted leave to file the counterclaim. Defendant appealed from so much of the judgment as dismissed plaintiff's action, "without prejudice." That judgment was subsequently affirmed by the Appellate Division, Sheehan v. Sheehan , 22 N.J. Super. 326 (App. Div. 1952).
In 1952 plaintiff went to Florida and there instituted a divorce action. The proceedings were enjoined by the Superior Court of New Jersey in July 1952 and were subsequently abandoned. In that same month the court dismissed plaintiff's application to hold defendant in contempt for his failure to pay support for the children while she was in Florida.
In October 1952 defendant filed his counterclaim for divorce, to which plaintiff filed an answer. In March 1953 the divorce and custody trials came on for hearing. Meanwhile, the court denied plaintiff's application for an increase in the amount allowed for the support of the children, and her application for permission to remove them from the State of New Jersey. On March 30, 1953 a judgment nisi
was entered in favor of defendant on the ground of adultery as charged. Defendant was granted custody of the children, with visitation rights to plaintiff in the State of Florida for six weeks. On July 1, 1953 the judgment nisi became final.
On August 6, 1953 plaintiff married the co-respondent Tarrant in Washington, D.C. In October 1953 plaintiff, without divulging her marriage to Tarrant, filed a complaint against defendant for partition of the marital residence, which contained his professional office. Approximately a year later the property was sold at sheriff's sale, from which plaintiff received $5,000.
In July 1954 the trial court ordered that plaintiff be granted custody of the children from July 1 to August 31, providing the children were not removed from the State of New Jersey, and directed defendant to pay $25 per week per child for their support. The court also specified that Tarrant was not to associate with the children.
In September 1954 plaintiff petitioned for permanent custody of the children. During the pendency of this petition the trial court ordered that the children live with their maternal grandmother in Newark, New Jersey. In December of that same year, upon consent of defendant, the trial court gave custody to the plaintiff. On January 10, 1955 the court signed the order consistent with defendant's consent given the prior December. This order, inter alia , granted permission to plaintiff to remove the children to Bethesda, Maryland. However, between the consent and the entry of said order defendant reneged. In February 1955 he appealed from that order.
In August 1955, without any court order, plaintiff took the children to Puerto Rico, where Tarrant was then employed. In October defendant moved for immediate custody of the children because of their removal to Puerto Rico. In November the Appellate Division reversed the order of January 10, 1955 and remanded the custody action for a full and complete hearing on the merits. Sheehan v. Sheehan , 38 N.J. Super. 120 (App. Div. 1955).
In May 1956 the trial court, pursuant to notice of motion to hold plaintiff in contempt of court for removing the children to Puerto Rico, gave plaintiff's attorney the opportunity to have them returned, and in June, she still being recalcitrant, plaintiff was held in contempt. In August 1956 the children were returned to Maryland. In February 1957 an order staying the enforcement of the contempt was issued and plaintiff was directed to deliver the children to defendant forthwith. On March 1, 1957 temporary custody was granted plaintiff by reason of a stay pending appeal.
Thus we come to the trial of this custody proceeding pursuant to the remand by the Appellate Division. This trial lasted for eight days, i.e. , April 1, 2, 3, 4, May 28, August 7, September 23 and October 11, 1957.
In the foregoing recital it should be parenthetically noted that "trial court" denotes at least seven different members of the Bench who sat on various of the applications.
On December 16, 1957 the following judgment was entered:
"1. Custody of the two minor children of the marriage of the parties hereto, to wit: Suzanne now of the age of 17 years and Diane now of the age of 16 years shall be in the defendant, Daniel C. Sheehan, but they are not to be sent to the defendant's home, except as hereinafter stated, rather to Mount St. Mary's Academy, North Plainfield, New Jersey, beginning January 2, 1958. All expenses of tuition, clothing, board and maintenance and all other charges of said boarding school or college (the said children shall have the right to suggest to the Court the college which they wish to attend) while either or both of the girls are in attendance there are to be paid by defendant.
2. A. The plaintiff shall have the right of visitation with and temporary custody of the 2 girls during the first 7 days of the Christmas vacation, the latter 7 days of the Easter vacation and from the first day of August to the end of the summer vacation.
B. The defendant's custody of the 2 girls shall include such custody at defendant's home during the latter 7 days of the Christmas vacation, the first 7 days of the Easter vacation, from the beginning of the summer vacation to the 31st day of July and at such other times not hereinbefore mentioned when the girls may be absent from said academy.
3. During the exercise by plaintiff of such visitation rights, the defendant shall pay to each girl the sum of thirty-five ($35.00) dollars a week for her support.
4. The one thousand ($1,000.00) dollars deposited by plaintiff with the Clerk pursuant to the order herein entered on October 10, 1955, now depleted to $980.42, shall be restored to $1,000.00 by plaintiff within 20 days from the date hereof and said $1,000.00 shall be retained by the Clerk as security for the return of the 2 girls to the aforesaid custody of the defendant in New Jersey until Diane reaches the age of twenty-one (21) years.
5. Since the plaintiff produced the 2 girls in court at all of the hearings except that on October 11, 1957, the plaintiff is purged of her contempt under the order herein entered on July 5, 1956.
6. The defendant is relieved and discharged from any and all obligation to pay for the support of the 2 girls by any order of this Court heretofore entered.
7. Defendant shall pay Jack Feinberg, Esq., attorney for plaintiff, counsel fees in the amount of One thousand three hundred and fifty ($1,350.00) dollars plus costs of suit to be taxed."
From this judgment plaintiff appeals and urges that:
I. The admission of certain testimony which went behind the judgment of divorce was improper.
II. The court erred in not striking prejudicial testimony which was not "connected up."
III. The defendant should have been held in contempt.
IV. The amount awarded counsel was inadequate.
V. The award of custody was "inimical to their [the two minor children] happiness and welfare."
Defendant cross-appeals and urges that the trial court erred in that:
I. The two minor children of the marriage of the parties hereto, to wit, Suzanne and Diane, are not to be sent to the defendant's ...