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Puzio v. Puzio

Decided: October 29, 1959.

THERESA PUZIO, PLAINTIFF-RESPONDENT,
v.
CIRO PUZIO, DEFENDANT-APPELLANT



Conford, Foley and Halpern. The opinion of the court was delivered by Conford, J.A.D.

Conford

The Chancery Division granted plaintiff, a New York resident, an award of separate maintenance from her husband, the defendant, a resident of Paterson. The judgment also included a money award based upon a judgment entered in the Supreme Court of New York for $3,382.50 and interest, representing accumulated arrearages due on a prior support order entered pendente lite in New York proceedings for separation brought by the plaintiff. Certain other provisions of the judgment under appeal are not complained of by the defendant.

The parties, both of whom are now about 36 or 37 years of age, were married in New York City in August 1948. At first they resided with the wife's parents in the Bronx, but relationships between the defendant and plaintiff's relatives were unsatisfactory, and the parties removed to a

small apartment on West 89th Street in Manhattan. The wife visited her family frequently, the husband seldom. His position was that they owed him money on loans and annoyed him continuously for further advances, and that he therefore tried to avoid them. On December 24, 1951 plaintiff went to visit her family in the Bronx (New York City) and the parties never resumed cohabitation. She says she had arranged to meet him at her grandmother's that evening, but he never appeared. His version was self-contradictory. At one point his testimony was that they agreed she would visit her parents alone, would return that evening, and that they would spend the next day (Christmas Day) together. At another, he said her parting remark to him on that occasion was that unless he agreed to come with her to live with her parents she was going to leave him, to which he responded, "Don't be silly, think over what you are doing." It is undisputed that when she left the apartment on December 24, 1951 she took none of her clothing or personal effects with her. She testified she became ill, stayed at her mother's and phoned him during the next few days but could not reach him. He testified he did not phone to inquire about her absence because he did not wish to speak to her mother; nor did he go to see about her for fear of being beaten. At another point he said he did phone, but hung up when her mother answered. A third explanation was that he asked for his wife on the phone but the mother-in-law would not "put her on the phone." He consulted a lawyer early in January 1952, before he saw his wife again.

In November 1951 defendant had appropriated to himself a $500 Christmas Club account belonging to plaintiff, and not long after the separation he withdrew from two banks all of their savings, amounting to several thousand dollars, and loaned a substantial part of it to his brother.

It is unnecessary to recount all the testimonial details of the sharply contradictory versions of the parties and their witnesses concerning their alleged efforts at reconciliation,

personally and through the intermediation of friends and lawyers. Plaintiff had three different counsel and defendant two during 1952. There were two or three reconciliation conferences. The general import of the proofs on plaintiff's behalf was that at all times after the separation defendant took and adhered to the position that he was through with his wife, even going to the extent of changing the locks on the 89th Street apartment to prevent her gaining access thereto. Defendant's story was that his wife at all times made her resumption of cohabitation with him conditional upon their taking up residence with her parents, which he refused. He was partly supported as to this by testimony of his second New York counsel in respect to conferences in late May and early August 1952.

Defendant testified that his last effort at reconciliation occurred in September 1952, when he met plaintiff at her place of employment pursuant to arrangements made by the lawyers. At his renewed request that they live together apart from her parents, she called him "crazy," and since then he has "wanted no part of her," and "wouldn't live with her."

On October 15, 1952, pursuant to a summons "in blank" issued the previous May, plaintiff through her last New York counsel filed a complaint in the New York Supreme Court for a separation from bed and board and for support. The recitals of the complaint, which was verified by plaintiff, are material to defendant's position on both branches of this appeal. They include acts of physical brutality, verbal abuse, false accusations by defendant of plaintiff's being syphilitic, "perverted sexual demands" by defendant which left plaintiff "completely shattered and under great physical and mental strain," locking plaintiff out of their home, and forcing plaintiff twice to "avoid" incepted pregnancies by taking medications. The tenth paragraph of the complaint charges, in conventional verbiage, that defendant's acts made it unsafe and improper for plaintiff to continue to cohabit with him, but also that plaintiff is unable to live

with defendant because he "has thrown plaintiff out of their home, closed the doors to her" and refuses her entry and support. In addition to the general verification of the complaint, plaintiff filed a plenary affidavit reciting the foregoing allegations of misconduct in extenso with additional circumstantial details. Supporting affidavits were filed by her mother and two family friends.

Defendant appeared in the New York action by counsel, but he did not answer the complaint. His counsel was also served with notice of an application for support pendente lite. This was not opposed, so far as the record before us discloses, and an allowance of $15 per week was made in November 1952, but never honored by defendant. He was employed as a restaurant waiter at all times here material. He testified to earnings of from $3,200 to $4,000 per year. Plaintiff was employed from time to time during the cohabitation of the parties as an underwear operator.

In accordance with the New York practice, a judgment for arrearages on the order pendente lite was entered in favor of plaintiff and against defendant in the New York Supreme Court March 10, 1955, service of the application therefor having been made on defendant's New York counsel.

Defendant moved to 24 Thomas Street, Paterson, in this State, in November 1952. He has resided there ever since, except for an indeterminate period prior to May 1954, during which his place of residence is a matter of doubt. He obtained a Florida divorce May 31, 1954 on grounds of extreme cruelty, presumably based upon some sort of residence in that state. But he testified he made three trips from Florida to New Jersey and "stayed for a while up here." However, in reporting to the immigration authorities in January 1954, pursuant to federal regulations for control of resident aliens, he gave the Paterson address as his residence. In July 1954 he married the daughter of the other occupants of the two-family house in which he lived in Paterson, and he cohabited with her there until he consulted New Jersey counsel after service upon him in December

1954 of the complaint in the present action. Being then advised that the Florida divorce was invalid for failure of proper service upon the plaintiff, he ceased cohabitation with his second wife, so he testified, and since has lived in the apartment of her parents at the same address. It was conceded on defendant's behalf in open court that the Florida divorce is invalid for failure of proper service upon the plaintiff.

I.

We consider first the cause of action for maintenance. Judge Hegarty, the trial judge, filed a written opinion in which, after recounting the testimony in connection with the events precipitated by the Christmas Eve 1951 visit of plaintiff to her grandmother (or her mother), and the marriage and cohabitation of defendant with another woman after the concededly invalid Florida divorce, he concluded that defendant had without justifiable cause abandoned plaintiff or separated himself from her. Plaintiff was awarded support of $15 per week. Any doubt from the language of the opinion that the court was deciding the disputed issues of fact relative to the original separation of the parties and its aftermath in favor of the plaintiff, and basing its conclusion of abandonment of plaintiff by defendant thereon, independently of the effect of the defendant's later remarriage, is dispelled by the supplemental opinion filed after reargument. There it is expressly found that the defendant abandoned the plaintiff and refused to reconcile with or support her. The remarriage and cohabitation were found to constitute circumstances which made the abandonment complete and effectual. We deem the first mentioned findings, if supported by the evidence, fully to support the judgment for maintenance, apart from the circumstances relative to the second marriage and consequent cohabitation with another woman.

Concededly, the proofs were in serious conflict and the credibility of the plaintiff sharply ...


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