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Franzoni v. Franzoni

Decided: April 4, 1960.

ISOBEL FRANZONI, PLAINTIFF-RESPONDENT,
v.
ANDREW E. FRANZONI, DEFENDANT-APPELLANT



Gaulkin, Sullivan and Foley.

Per Curiam

Plaintiff sued for separate maintenance. Although defendant filed an answer in which he denied the allegations of the complaint, at the trial he did not contest plaintiff's right to separate maintenance, but did dispute the amount to be paid. The trial court adjudged that defendant pay plaintiff $200 per week separate maintenance, and a fee of $1,250 to her counsel. In this appeal defendant challenges these allowances as too high.

At the trial plaintiff, defendant and defendant's accountant testified. Immediately after the conclusion of the testimony a colloquy ensued between court and counsel which occupies six pages of the appendix, at the end of which the judge said:

"* * * I will review the matter further * * * you must realize the difficulty a judge faces in resolving financial issues of this sort. I face it realizing that regardless of what I decide it won't be too well received. I know that I will do the best I can so that justice will be done. * * *"

The next step, apparently, was the entry of the judgment from which this appeal is taken. At no time did the judge "* * * 'find the facts specifically and state separately its conclusions of law thereon,' or file an opinion or memorandum * * * in lieu thereof, * * *," as he must do under R.R. 4:53-1 and R.R. 4:93-1. Testut v. Testut , 32 N.J. Super. 95, 100 (App. Div. 1954). Nor does it appear that counsel asked him to do so. R.R. 4:53-2.

In Testut we pointed out how essential it is to a just result that all trial judges -- not only matrimonial -- obey the rules relating to the stating of their findings of fact and conclusions of law when they try cases without a jury. We said:

"The requirement that the trial judge file findings of fact and conclusions of law is not merely for the convenience of the upper court on appeal. While it does serve that end, it has the far more

important purpose of evoking care on his part in ascertaining the facts and the applicable law. United States v. Forness [2 Cir. ], supra , 125 F.2d [928], at page 942, where Judge Frank said:

'For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper. The trial court is the most important agency of the judicial branch of the government precisely because on it rests the responsibility of ascertaining the facts. When a federal trial judge sits without a jury, that responsibility is his. And it is not a light responsibility since, unless his findings are "clearly erroneous," no upper court may disturb them. To ascertain the facts is not a mechanical act. It is a difficult art, not a science. It involves skill and judgment. As fact-finding is a human undertaking, it can, of course, never be perfect and infallible. For that very reason every effort should be made to render it as adequate as it humanly can be.'"

Although Congleton v. Pura-Tex Stone Corp. , 53 N.J. Super. 282, 286-288 (App. Div. 1958), and Folsom v. Magna Manufacturing Co. , 14 N.J. Super. 363, 368-369 (App. Div. 1951), were workmen's compensation cases, most of the reasons given there for the necessity of adequate findings apply to all cases tried without a jury.

We have observed, with regret, that R.R. 4:53-1 is very often ignored. We appreciate the fact that the trial judges are very busy, but, as we pointed out in Testut , 32 N.J. Super. , at page 100, " R.R. 4:53-1 does not place too heavy a burden upon the trial judge, for he 'need only make brief, definite, pertinent findings and conclusions upon the contested matters,' * * *." It does not save time to ignore R.R. 4:53-1, for frequently we must remand for lack of the necessary findings. In addition, we note that some trial judges make a lengthy resume of the evidence, usually oral but sometimes written, giving the name of each witness and his testimony, without resolving the conflicts therein. Such a resume is not a ...


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