Goldmann, Haneman and Foley. Goldmann, S.j.a.d.
Plaintiff brought an action for divorce in two counts. The first charged his wife with desertion in February 1954. The second alleged that in November 1957, and thereafter through the months of January to November 1958, inclusive, she committed adultery with a named corespondent at her Madison, N.J., home and in Nantucket, Mass. The answer denied both charges and related three occasions when plaintiff allegedly left defendant, the last time being in 1954, and that she thereafter "attempted to reconcile her marriage with him but that he obstinately refused to live with her any longer; that he wanted her to secure a Reno divorce." Defendant also alleged that plaintiff had never made any effort toward reconciliation, but that she has always desired to reconcile the marriage.
After a full hearing, the Chancery Division judge made oral findings of fact and conclusions of law in which he stated that he was going to dismiss the desertion count but that the proofs justified a finding of adultery. At this point in the oral opinion defendant's counsel inquired whether the trial judge was going to comment on the defense of desertion. The judge said he would not. Judgment nisi for divorce on the ground of adultery was thereupon entered in
plaintiff's favor, and the cause of action for desertion dismissed.
On this appeal defendant does not contend that the court's finding of adultery was against the weight of the evidence. Instead, she urges two points: (1) the trial court erred in refusing to make findings of fact with respect to the recriminatory defense of desertion, and (2) it was error to refuse to permit her to adduce expert medical testimony with respect to her mental condition at the time of the alleged marital offense.
At the outset it should be noted that defendant has presented a much abbreviated appendix which includes only the pleadings, judgment nisi , notice of appeal, and some seven pages of testimony fragments. This does not represent even a minimal compliance with R.R. 1:7-1(f). The most glaring omission is the absence of the trial judge's findings of fact and conclusions of law upon which plaintiff must and does rely on this appeal. Plaintiff has consequently been put to the trouble and expense of preparing an appendix adequate to the disposition of the appeal, totalling over 100 printed pages. See Eliasz v. Broadway Bank & Trust Co. , 62 N.J. Super. 1, 4 (App. Div. 1960); Morrone v. Morrone , 44 N.J. Super. 305, 308 (App. Div. 1957); Feddock v. N.J. Realty Co. , 28 N.J. Super. 400, 402 (App. Div. 1953); and Grove v. Grove , 21 N.J. Super. 447, 455 (App. Div. 1952), for our criticism of inadequate appendices. Because of the State's interest in the marriage relation and defendant's apparently limited means, we shall proceed to deal with the case on the merits instead of suppressing her brief or dismissing the appeal.
Under defendant's first point the argument is that the court disregarded the requirements of R.R. 4:53-1, which provides that in a contested action tried upon the facts without a jury, as here, "the court shall find the facts specially and state separately its conclusion of law thereon * * *." R.R. 4:93-1 makes that rule applicable in matrimonial actions. Franzoni v. Franzoni , 60 N.J. Super. 519
(App. Div. 1960), and Testut v. Testut , 32 N.J. Super. 95 (App. Div. 1954), are cited in support of this contention. In those cases the trial judge failed to make any findings of fact or to state any conclusions of law whatsoever. He did here, except in the one aspect of which defendant complains.
It may reasonably be inferred that the trial judge was indicating that he saw no merit in the alleged defense of desertion, when counsel called his attention to it and he refused to comment on it. It undoubtedly would have been better had the court specifically rejected the defense, briefly stating his reason. His refusal to comment on this issue when he clearly knew of it, coupled with his detailed findings and conclusions on the adultery aspect of the case, is fairly persuasive of the fact that he had concluded that the defense of desertion was not available to defendant.
Be that as it may, the record is so clear and complete as to permit us to exercise our original fact-finding jurisdiction under R.R. 1:5-4. Everything points to the conclusion that the claimed defense of desertion is without merit.
The doctrine of recrimination found its way into Roman and ecclesiastic law from the Mosaic law, and ultimately came to America as unwritten law. In New Jersey the doctrine is statutory insofar as adultery stands in bar of a charge of adultery. N.J.S. 2 A:34-7. However, the statute is not exclusive; it does not nullify the unwritten law. Although severely criticized in other quarters, and supplanted in some states by the doctrine of "comparative rectitude," see 11 N.J. Practice (Herr, Marriage, Divorce and Separation) (2 d ed. 1950), § 791, p. 204, the recrimination doctrine is firmly embedded as part of our statutory and unwritten law. Recrimination is an affirmative offense which must be alleged by answer, ibid. , § 1191, p. 413, and the recriminatory charge must ...