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Trotta v. Trotta

Decided: February 26, 1960.

LEONA TROTTA, PLAINTIFF-RESPONDENT,
v.
MAURICE TROTTA, DEFENDANT-APPELLANT



Goldmann, Conford, and Freund. Goldmann, S.j.a.d.

Goldmann

Pursuant to an order granting leave to appeal, defendant initially sought review of three interlocutory orders entered by the Chancery Division in his wife's separate maintenance action. The scope of the appeal has since been considerably reduced, as hereinafter noted.

The parties were married in 1931. Plaintiff claims that despite her every attempt to preserve the marriage she was obliged to separate herself from defendant because of his extreme cruelty, and finally had to leave the marital home in Verona with her son Richard on June 17, 1958. Efforts to effect a reconciliation having failed, she instituted an action for separate maintenance on August 1, 1958. She also applied for support and maintenance for herself and her son pendente lite , with counsel fees and suit monies.

Before the application could come on for argument, the parties entered into an agreement on October 3, 1958 which, among other things, fixed the amount of support payments, gave plaintiff custody of the boy, and provided that defendant "have the right to visit his son frequently and the son Richard shall be encouraged to spend as much time as possible with his father."

In January 1959 plaintiff applied for an order requiring defendant to pay her the amount set out in the agreement, as well as counsel fees and suit monies. The result was an order, dated March 24, 1959, directing defendant to pay plaintiff $100 a month for her support and maintenance and $200 a month for Richard, beginning January 30, 1959, together with counsel fees pendente lite, costs and suit monies. This was, on plaintiff's application, modified by an order entered June 18, 1959 which, among other things, directed that defendant also pay 50% of the taxes and mortgage payments on the marital home to which plaintiff and her son had returned some months before.

In the meantime defendant applied for and was granted leave to file a counterclaim seeking (1) custody of his son Richard; (2) "the right to have the said child attended to by a child psychologist"; and (3) an investigation by the Probation Department into the character and fitness of the parties, their economic condition, and defendant's financial ability to pay support and maintenance.

Immediately following entry of the modifying order of June 18, defendant applied for an order relieving him from paying plaintiff further support pendente lite , and also for an order permitting him "to commence a program of reconciliation between himself and his son with the aid of a child psychologist." Extensive affidavits were filed. On June 26, 1959 the Chancery Division judge denied both applications. In lieu thereof, and adopting plaintiff's suggestion, he ordered Richard to appear on July 1, 1959 for an interview, at which time he would determine if it were necessary to seek the aid of a court-appointed psychologist.

The results of that interview are set out in the findings and conclusions embodied in an opinion filed by the judge after learning of the present appeal.

"On July 1, 1959, this court interviewed Richard Trotta, the son of the parties hereto. This interview was by consent of both parties. The court ascertained that Richard Trotta was born on February 9, 1943; is living with his mother, the plaintiff, at 27 Birdseye Glen, Verona, New Jersey, and has finished the 10th year in Paramus High School of this State.

After the interview, the court reported that the predilection of the child of the marriage was that he did not want to visit with his father under the existing circumstances and that he would object to any psychological examination. Richard stated that he would obey any order of this court.

It should be noted that plaintiff's attorney, who has since withdrawn from the case, stated that the plaintiff in no wise sought to bar the court from the benefit of whatever professional psychological advice it deemed necessary. Plaintiff doubted whether ...


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